The First Amendment to the Constitution is so cherished that the Supreme Court has even protected the rights of hate groups to utter hostile words toward the government.
In Brandenburg v. Ohio (1969), a case that originated here in Hamilton County, the court overturned the conviction of a KKK member under an Ohio syndicalism statute for saying on a Cincinnati television station that “some revengence” should be taken if “our president, our congress, our Supreme Court continues to suppress the white, Caucasian race.” The court reasoned that Clarence Brandenburg’s remarks only amounted to advocacy of an indefinite action at an indefinite time in the future.
Such broad freedom of speech is the most important tool for self-governance, as the people and their press must be able to criticize government officials without fear of retribution. It is part of a fundamental check on government power.
However, President Donald Trump has challenged this essential tenet of democratic self-governance in significant ways. Throughout his presidential campaign Trump suggested that libel laws should be changed to make it easier for government officials to sue journalists that question their behavior. Trump said: “I’m going to open up our libel laws so when they write purposefully negative and horrible and false articles, we can sue them and win lots of money.”
Since the election, two of Trump’s senior advisers have been more blunt. Kellyanne Conway said that journalists “should be fired” while bemoaning what she perceived as unfavorable coverage of Trump. Steve Bannon said that news media should “keep its mouth shut,” referring to journalists as an “opposition party.” The implication of Trump’s statements and those of his advisers is to chill the speech of critics and limit the ability of the press to scrutinize government activity.
As provided in New York Times Co. v. Sullivan (1964), the Supreme Court set a high standard for public officials to win libel suits. The court articulated the need to protect the ability of people and the press to discuss public issues and criticize government behavior. The court said that free speech needs breathing space, even if it means tolerating some falsehoods.
A rule that requires a speaker to ensure the validity of every single statement in his or her criticism of government officials would likely result in self-censorship. The court made clear that injury to the reputation of government officials does not give the government the right to burden speech.
Government officials already have significant forms of power and access to the media (and these days, social media) to respond to any perceived falsehoods. The courts have consistently said that more speech is better than less. That’s what the marketplace of ideas is supposed to be.
However, as a public figure, Trump has a well-established track record of using his enormous wealth to file vexatious libel lawsuits to intimidate and silence his critics. For instance, during the 2016 election Trump sued Univision and the head of its programming after it dropped coverage of the Miss Universe pageant in response to his campaign comment that many Mexicans entering the U.S. illegally are rapists and for posting a picture of Trump next to convicted murder, Dylann Roof, on its Instagram page.
While Trump may ultimately lose these kinds of cases, the defendants paid heavily to defend themselves. Trump boasted after one case: “I liked it because I cost him a lot of time, and a lot of energy, and a lot of money.”
President Trump has regularly stoked hatred and distrust of news media by regularly describing the press and reporters as “dishonest,” “scum,” “horrible people” and “sleaze.” Last week Trump claimed that the “very, very dishonest press doesn’t want to report” terrorist attacks happening in the U.S. Of course, if he were talking about the so-called “Bowling Green Massacre,” the press cannot cover something that simply did not happen. In Trump’s defense, the White House released a list of 78 incidents, which it claims that the media underreported (or didn’t report at all), including attacks in Orlando, Fla. and Nice, France (which, of course, received wall-to-wall coverage on national news media).
The denigration of professional news organizations is particularly vexing in the age of social media and fake news. Social media is a totally open platform, as anyone can share practically anything with anyone without any quality or fact filters. Fake news has confused political discourse, making it difficult for many to discern credible outlets from specious ones. Bots allow users to automate hundreds of posts from a single account in a day and spread false information from fake news sites at ever increasing rates.
To make matters worse, Trump has used the phrase “fake news” as a form of double-speak to refer to professional news outlets that produce stories unfavorable to his administration — while legitimizing alt-right sources, such as Breitbart, Gateway Pundit and, of course, Fox News cable network.
The relationship between the executive branch of government and the press is often an antagonistic one, as it should be. That is precisely what the First Amendment protects — for the people and the press to be free from government suppression in expressing their sentiments and skepticism of government.
In New York Times Co. v. United States (1971), commonly referred to as The Pentagon Papers case, President Richard Nixon claimed executive authority to suspend publication of classified information that his administration possessed. There was a real question in the balance of power between executive authority and a free press as provided by the First Amendment.
Here though, the Supreme Court came down emphatically on the side of the press. Justice Hugo Black writing for the majority said: “In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people.”
While these landmark decisions came more than 45 years ago, the judiciary might need to vigorously defend the rights of the press again today. If the Supreme Court allows hate groups to utter hostile words against the government, surely it will guard the rights of journalists to perform their essential role in democratic society.
JEFFREY LAYNE BLEVINS, PH.D., is an associate professor and head of the Journalism Department at the University of Cincinnati where he teaches Media Law & Ethics.
This article appears in Feb 15-22, 2017.