//  9/19/17  //  In-Depth Analysis

It's now clear that President Trump poses unprecedented threats to freedoms of speech and press. Take Care and Protect Democracy have teamed up to encourage analysis of how best to defend the First Amendment. Over the coming weeks, we will host a forum in which leading scholars consider how we can use the law (and litigation) to protect against Trump's use of the "bully podium."

By Anne Tindall and Ben Berwick

Last Monday night, ESPN anchor Jemele Hill tweeted that President Trump is a “white supremacist” and “an unfit, bigoted, incompetent moron” who is “unqualified and unfit to be president.”  While this is certainly scathing criticism, it is hardly remarkable in today’s political climate.  Hill is not the first person to level such accusations at the President; nor is Trump the first President to be the target of such accusations.  As others have pointed out, President Trump himself accused President Obama of being a racist and a secret member of—or at least sympathizer with—ISIS.

Nonetheless, White House Press Secretary Sarah Huckabee Sanders suggested from the White House podium that ESPN should fire Hill.  Such a suggestion, when issued from the White House, has teeth.  Indeed, it appears that after Sanders issued her comments, ESPN tried—unsuccessfully, thanks to the objections of her colleagues—to take Hill off the air.  Friday morning, President Trump doubled down on White House criticism of ESPN, tweeting that ESPN’s “politics” were turning off viewers and demanding that the sports media company “[a]pologize for untruth!”

If the White House’s threats against Hill and ESPN were an isolated incident, they could perhaps be forgiven as a lapse in judgment.  But they are far from isolated.  Instead, they are part of a broader and more systematic attack by the President and others within his administration on the free press and free speech.  

Since January, they have repeatedly labelled news outlets that President Trump deems unfavorable as “fake news,” and they have banned certain outlets from press briefings.  The President has called the press “enemies,” “liars,” and “sick people.”  He has singled out individual members of the press for verbal abuse.  His administration has expressed a desire to jail journalists who publish classified information and to “open up” libel laws.  He has criticized and threatened Amazon after unfavorable coverage in the Washington Post, with which it shares an owner.  And a feud over coverage of the President on an MSNBC show hosted by Joe Scarborough and Mika Brzezinski rapidly escalated—resulting in allegations that the President’s son-in-law had threatened unflattering coverage of the anchors in National Enquirer unless Scarborough personally apologized to President Trump for his criticism.

We also have seen the President attack individual citizens for expressing their views.  For example, in the realm of sports, he has suggested that NFL teams will not employ quarterback Colin Kaepernick—who has refused to stand for the national anthem—because they know that they will be attacked by the President of the United States if they sign him.  And seemingly eons ago, the President tweeted biting criticism of Chuck Jones, president of the United Steelworkers Local 1999, because Jones (accurately) accused the President of overstating his role in saving the jobs of Carrier workers in Indiana.

These attacks on the press and free speech have taken different forms, but there is a common theme: an attempt to bully, punish, and silence critics, whether ordinary citizens or members of the media.  This methodical attack on dissenters is a disturbing sign of democratic decline.  A free press and the right to criticize government are hallmarks of a free and open democratic society, and attacks on these freedoms are a traditional tool of authoritarian leaders.

Yet unlike in other areas where President Trump has threatened to undermine our democracy and the Constitution, there has not been a concerted attempt by lawyers and legal organizations to push back on his attacks against the free press and free speech.  This notable silence may be the result of a general perception that—as troubling and un-American as it is when the President or his associates threaten critics—there is no available legal remedy.

It may be that the best response to some of these attacks on the press and free speech lie outside the legal realm, and should be left to our civic society and politics.  But we would suggest that, while there are questions to work through, there should be—and likely is—a justiciable claim when the White House seeks to force the firing of a critical reporter, or threatens to send IRS or DOJ investigators after a newspaper, to chill unfavorable coverage.

So in partnership with Take Care, we hope to start a conversation.  Has the White House already violated the Constitution or other laws through its bullying of the press or private citizens?  What can legal scholars and advocates do to combat it?  Is the First Amendment as vulnerable as it might seem, or are there more useful legal tools at our disposal?

Depending on the facts, there may be a number of available legal claims to respond to White House bullying.  To name a few, these could include a state law claim for tortious interference with contract; a defamation claim; an Administrative Procedure Act claim (if an agency takes a particular action in furtherance of White House bullying); or, possibly, constitutional due process or equal protection (class of one) claims.  Any one of these legal theories could be appropriate in a particular scenario, and surely there are others, too.

Our sense, however, is that when the White House goes after its critics, the gravamen of the concern is an affront to the First Amendment.  So for this post, we’d like to focus on whether there’s a First Amendment claim against government bullying of the press, and, if so, what that claim looks like.

A dominant feature of the monarchies that the nation’s Founders left behind was punishment of those who dared speak (or write) against the King.  That’s why the Framers established a bulwark against such punishment in the First Amendment.  And we as a nation have long recognized and protected the First Amendment principle that government cannot suppress or punish unfavorable coverage.  As the Supreme Court explained almost a century ago in Near v. Minnesota, 283 U.S. 697, 710 (1931), the fundamental objective of the First Amendment’s drafters was to prevent government action restraining “publication of censure of public officers and charges of official misconduct.”  See also N.Y. Times v. Sullivan, 376 U.S. 254, 292 (1964) (state action aimed at stifling criticism of the government “strikes at the very center of constitutionally protected expression”).

We do not intend to suggest that there is a sound First Amendment claim against the President or his administration for mere, routine criticism of the press.  Certainly, presidents throughout history have been critical of the press—in fact, our very first President called them “infamous scribblers.”  And criticism of the press—if criticism is all we’re talking about—is most likely entitled to First Amendment protection itself and part of the robust debate the Constitution fosters and preserves.  

But the question we’d like to explore is when White House statements go beyond criticism and become threats or intimidation that chills speech.  Such official criticism might cross a line such that it gives rise to a cognizable claim by a targeted press/media entity or reporter.  

Imagine, for example, an explicit threat from the President to have the IRS review Amazon’s taxes or initiate an antitrust investigation after a critical editorial appears in the Post.  Or an implicit threat that the FCC will not look kindly upon Disney the next time it is before the agency unless ESPN gets its employees to stop criticizing the President.  On those facts, or countless others that are anything but far-fetched with Trump as president, a media company might have a First Amendment case grounded in reasonable fear of governmental retaliation for its protected speech.

Two lines of authority suggest that such a threat would give rise to a valid claim.

The first are those familiar cases that unambiguously prohibit the government from suppressing or punishing dissent or criticism.  This is the core principle that animates the decisions in Near, Sullivan, and other press freedom cases.  As Justice Douglas explained in his concurring opinion in New York Times v. United States, “[t]he dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information.  It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be.”  403 U.S. 713, 723-24 (1971).

The second relevant line of authority are the cases recognizing that the mere threat of a government enforcement action can chill speech, and so applying a relaxed ripeness standard to First Amendment claims.  As the Supreme Court recognized in Secretary of State of Maryland v. Joseph H. Munson, Co., Inc., 467 U.S. 947, 956 (1984), in a First Amendment context, “there is a possibility that, rather than risk punishment” for speech, a speaker “will refrain from engaging further in the protected activity.”  As a result, “[s]ociety as a whole . . . would be the loser.  Thus, when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed” by societal interest in seeing speech vigorously protected.  Id.

To be sure, these cases generally involve (1) a specific statute or regulation, (2) conduct by the plaintiff that would arguably be covered by the statute or regulation, and (3) a credible threat of enforcement.  But the principle driving these pre-enforcement review cases is that First Amendment rights are in jeopardy where a credible threat of some adverse or punitive action from government has the effect of chilling speech.  And on the facts posited in our Amazon and Disney examples, the threat is unquestionably credible when it comes from the White House: presidential words have power in any context, and an agency might interpret those words as an order or otherwise take action based on the President’s suggestion.  

So while the threats to Amazon or Disney from the White House may not be as explicit or grounded in a specific statute as are some other prohibited threats, the fact that they come from the President (who controls the full machinery of government) gives them extra force and exacerbates the chilling effect.  A subtle threat from the President may be far more intimidating than a direct threat from a low-level bureaucrat.  

Together, these cases suggest that a court should take very seriously a claim that a threat from the White House interferes with press freedom and/or has a chilling effect on speech.  This is consistent with common sense:  A media entity might think twice about criticizing the President or keeping a presidential critic on its payroll if it means an IRS audit or other adverse consequences.  That is true even if the likelihood of an enforcement action from any one federal agency is relatively low.  Media companies, like any other companies, are risk averse, so once the White House issues a threat, much of the damage is already done.  And we may not even know when speech has been chilled.  A cautious corporate general counsel or political affairs director may send around a memo advising employees to keep silent.  (A leaked memo from ESPN’s president reflects the predictability of such a reaction.)  White House threats also may affect decisions about hiring, promotion, or deployment of resources.  

Admittedly, the line between White House criticism of the press (which would be protected in its own right) and a credible threat that chills speech (thus violating the First Amendment) may be hard to draw.  But why can’t courts take account of the power of the White House in assessing the likelihood that government threats will chill speech?  We think that threats from the President about calling in the Justice Department or IRS, or announcements from the White House podium that a journalist has committed a “fireable offense,” cross this line.

There’s another important issue, which we flag here but will return to in a later post: if there is a valid First Amendment claim when the White House bullies a media company or journalist, how can a court redress it?  What is the remedy? We’ve got some ideas about that topic, but will wait to hear from others first.

So we will leave this here for now.  We hope that some of America's—which is to say the American democracy's—foremost legal minds will contribute their thoughts over the coming weeks (and beyond), and that through a collaborative process we can determine some ways to enforce the Constitution’s safeguards against government assaults on free speech and dissent.

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