What First Amendment?

AP Photo/Alex Brandon

April Ryan, of American Urban Radio Networks, raises her hand to ask a question of White House press secretary Sarah Huckabee Sanders during a press briefing at the White House

Conservatives who should be appalled by President Donald Trump’s anti-media attacks have responded instead with a collective shrug.

Never mind that Trump has taken steps to block publication of a critical book, assures a typical Wall Street Journal editorial—he would never follow through, and the courts would never go along. The Journal likewise brushes off Trump’s threat to “open up” the libel laws as “familiar and feckless bluster.” Trump may brand journalists “the enemy” of the American people and hand out “fake news” awards, goes the argument from the right, but his actions matter more than his words.

This sanguine take on Trump’s campaign to demonize the news media overlooks the real-world damage it inflicts on journalists, both at home and abroad. Trump’s words and actions have materially chilled speech—in the U.S., where 78 journalists were attacked or arrested last year, and around the world, 262 journalists are in prison, 21 of them for publishing “fake news.” The toxic fallout includes death threats, anti-Semitic media harassment, physical attacks, and GOP governors who deny interviews. (One politician paid more than $5,000 in fines and restitution after body-slamming a reporter.)

American journalists on a recent panel co-hosted by the Newseum and the Committee to Protect Journalists described struggling to do their work in an unprecedented atmosphere of hostility, suspicion, stonewalling, and even fear. Death threats are routine. “The FBI is on speed dial. So is the Secret Service, and the local police department,” said panelist April Ryan, White House correspondent for American Urban Radio Networks, who has publicly tangled with Trump.

Foreign journalists are paying an even bigger price, prompting some conservatives to finally speak up. Trump’s “unrelenting attacks on the integrity of American journalists and news outlets” have “provided cover for repressive regimes to follow suit,” wrote GOP Senator John McCain, of Arizona, in a recent Washington Post op-ed. McCain cited journalists arrested and systematically discredited in China, Egypt, Russia, Turkey, Venezuela, and elsewhere.

His fellow Arizona Republican, Senator Jeff Flake, noted in a Senate floor speech that such despots as Syrian President Bashar al-Assad and Philippine President Rodrigo Duterte have used the words “fake news” to justify their human rights abuses. Trump’s use of Josef Stalin’s phrase “enemy of the people” to describe journalists “is a testament to the condition of our democracy,” said Flake, who added that “of course, the president has it precisely backward—despotism is the enemy of the people. The free press is the despot's enemy, which makes the free press the guardian of democracy.”

Conservatives’ blithe dismissal of Trump’s chilling impact is all the more striking given the First Amendment’s increasingly central place in conservative orthodoxy. The conviction, however unfounded, that campaign-finance limits would lead to book banning was at the heart of the Supreme Court’s Citizens United ruling to deregulate corporate political spending. Since Hillary Clinton opposed that ruling, conservatives argue, she posed a greater First Amendment threat than Trump. Besides, they assure, Supreme Court Justice Neil Gorsuch will rigorously defend free speech.

But not all First Amendment defenders take Trump’s media wars so lightly. None other than constitutional law expert Floyd Abrams, who led the GOP’s charge to deregulate politics in the name of free speech in Citizens United, warned The Wall Street Journal in a letter that its editorial board is “far too serene” about Trump’s bid to silence author Michael Wolff. Trump’s threats have led to actual lawsuits, Abrams wrote, and “not all publications and journalists can so easily shrug off such threats of financially crippling litigation.”

In an interview, Abrams acknowledged that Trump would find it hard to expand libel laws, which now fall largely under state jurisdiction. But he warned that there is no guarantee that an extraordinary event, such as a terrorist attack, might not prompt Trump to push hard to federalize libel laws. Abrams said he’s “hopeful” that Gorsuch will rigorously defend the First Amendment, but that “no one knows” how he might rule in a case that, say, pitted national security against free speech concerns. Trump has so far been “unable to stifle speech of which he disapproves” noted Abrams, “but the unending drumbeat of criticism, accusation, and denigration of the press takes a toll.”

Indeed, Trump’s assault on free speech is far more direct, aggressive, and broadly destructive than anything yet seen in the United States. He’s threatened legal action to silence critics; called for news organizations to fire specific journalists; tweeted videos and images of himself inflicting bloody violence on figures bearing the logo of CNN, a favorite target; and has weaponized mainstream media outlets as “fake news.”

The news media, from cable channels dominated by shouting matches to news outlets that fail to check their facts, do share some of the blame for this mess. Only 33 percent of Americans have a “very favorable” or “somewhat favorable” opinion of the news media, noted a report from Gallup and the Knight Foundation, and 66 percent say the media are bad at separating fact from opinion. Such surveys reflect a larger news industry crisis in confidence, and come amid soul-searching forums like the one at the Newseum, and another this week at The Washington Post.

And progressives, too, have failed to consistently defend free speech. Campus political protests, while often overblown and even egged on by conservative provocateurs, have raised legitimate First Amendment concerns. “Anti-fa” activists have resorted to violence. President Barack Obama kept a tight rein on information, was not transparent, and aggressively prosecuted whistleblowers, according to Reporters Without Borders.

But Trump’s assault on free speech goes far deeper, advancing a Soviet-style disinformation campaign that helps fuel what a recent Rand Corporation report dubbed “Truth Decay.” Trump treats facts as irrelevant and fungible, having made 2,140 false or misleading claims in his first year. Yet heightened disagreement about facts and how to interpret data, Rand’s report warns, contributes to government dysfunction, hurts diplomacy and economic investments, and poses “a threat to the health and future of U.S. democracy.”

And Trump may be gearing up to go further, materially weakening media protections in the U.S. Last year, 34 American journalists were arrested, many when they were covering protests, and one photojournalist went to trial (and was acquitted) for a felony offense. American journalists still enjoy far greater institutional protections than journalists in, say, Turkey, where 73 journalists are now imprisoned, notes Alexandra Ellerbeck, North American program coordinator at the Committee to Protect Journalists.

Attorney General Jeff Sessions has signaled plans to revise Obama administration media guidelines, making it easier for the Trump administration to subpoena reporters. Obama prosecuted eight leakers under the Espionage Act, according to CPJ, but the Trump administration has 27 leak investigations open. Any move that makes it harder for journalists to protect their sources is a “fundamental and basic assault on information gathering and news reporting,” warns Ellerbeck.

None of this seems to worry supposed First Amendment champions on the right. With a few exceptions, such as Flake and McCain, conservatives take Trump’s assaults on free speech merrily in stride. As GOP election lawyer Jim Bopp recently assured the Center for Public Integrity:

Liberals refuse to understand with Trump that you can’t take what he says literally. What is important about Trump is what he’s doing and not what he’s saying, and in practice, everything he’s done is in step with maintaining a First Amendment-friendly approach to campaign finance.

Bopp’s comments shed light on the real reason Republicans don’t really care whether Trump trashes press freedoms. For many on the right, the First Amendment is less important as a tool to protect speech than to protect money, and those who spend it. As ethics attorney Kathleen Clark, who teaches law at Washington University in St. Louis, puts it: “Economic power, and the ability to exploit economic power, is at the center of their vision of the First Amendment.”

It’s not the only way that Republicans have swept aside Trump’s threats to democracy, national security and the rule of law. If they just change the subject to Hillary Clinton or Neil Gorsuch, Republicans seem to think, all will be well. Nor is it the first time the GOP has elevated partisan politics above long-cherished principles. But given how highly conservatives purport to prize the First Amendment, it’s remarkable how casually they’ve abandoned it.

This article has been updated. 

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