I’m increasingly convinced that Donald Trump, to quote Lord Varys in Game of Thrones, would happily see this country burn if he could be king of the ashes. And where better to start the fire than the First Amendment?
Since announcing his presidential candidacy, Trump has threatened to sue the Daily Beast for reporting that his ex-wife Ivana once used the word “rape” to describe a 1989 incident between them; The Washington Post for reporting on his bankrupt Taj Mahal casino; and The Associated Press for reporting on efforts by the Trump Ocean Club’s directors to oust managers installed by Trump. He announced that his lawyers wanted to sue The New York Times for “irresponsible intent,” and one such lawyer threatened to sue the Times for publishing some of Trump’s tax records, all before Trump threatened to sue the Times for reporting on claims that he inappropriately touched two women, prompting David McCraw, the paper’s lawyer, to respond in a letter that basically said, “I dare you.”
More broadly, Trump has said he “will be bringing more libel suits” against the press and others, adding, “I don’t want to threaten, but I find…the press is unbelievably dishonest.” He also promised to “open up our libel laws” to make it easier to sue news organizations like the Times and Post “and win lots of money.” Last weekend, too, Trump complained about coverage of his campaign and suggested that the US should adopt the UK’s stricter libel laws. Amid all of this, the American Bar Association effectively spiked an article set to run in Communications Lawyer, published by the ABA’s Forum on Communications Law, about Trump’s history of threatening meritless lawsuits—because of “the risk of the ABA being sued by Mr. Trump.” The Committee to Protect Journalists recently declared Trump an “unprecedented threat” to press freedom, and civil liberties lawyers, including yours truly, have pledged to represent pro bono anyone Trump sues for exercising his or her expressive rights.
It’s nothing new, of course, for politicians to threaten and trash the press, but Trump has distinguished himself in this area—keeping in mind that the examples above are just that: examples. The list goes on, and as the ABA article, now available through the Media Law Resource Center, found, “Trump and his companies have been involved in…4,000 lawsuits over the last 30 years and sent countless threatening cease-and-desist letters to journalists and critics. But [he] and his companies have never won a single speech-related case filed in a public court.”
There’s a lot of noise here, but what especially interests me is a singular question: If Trump were elected, what could he do to change US media law or restrict journalism practice? To answer it, let’s focus on the major issues:
First, could President Trump “open up our libel laws”? No. States create nearly all libel laws, and they’re subject to First Amendment limits. Trump couldn’t require states to change their laws, any more than he could require the Supreme Court to change its First Amendment jurisprudence, or require Congress to rewrite the First Amendment. This is a matter of eighth-grade civics. Trump would lack the constitutional authority in every way to do these things. His best course would be to appoint federal judges and Supreme Court justices who share his libel views, not impossible because some lawyers and judges, such as the late Justice Scalia, are not fans of New York Times v. Sullivan, which set a high bar for public officials and figures to win libel claims.
When he vowed to “open up our libel laws,” Trump said, “So when they write purposely negative and horrible and false articles, we can sue them and win lots of money.” To libel someone means publishing a false statement of fact about a person that harms his or her reputation. And, more to the point for a public official or figure, like Trump, that person must prove that the statement was made with knowledge of its falsity or in reckless disregard for the truth. In other words, Trump is complaining about something that is already actionable.
Second, could President Trump change the Freedom of Information Act? Kind of. He alone couldn’t amend the law, but he could affect its implementation. For example, on his first full day in office, President Obama signed one executive order and two presidential memoranda heralding a “new era of openness” that would, among other things, re–establish a presumption of disclosure for records requested under the FOIA—and reverse President George W. Bush’s changes to the Presidential Records Act, to hold his own records “to a new standard of openness.” Whether the Obama administration has met its transparency goals is very much in dispute, but the order and memoranda were nonetheless significant. Although the 2016 FOIA amendments codified the presumption of disclosure, making it more difficult for any future president to change it without going to Congress, Trump could influence how the statute and amendments are applied.
Moreover, the DOJ’s Office of Information Policy oversees agency compliance with the FOIA; ensures that all presidential FOIA orders and memoranda, along with any attorney general guidelines, are implemented across the government; develops policy guidance for agencies regarding FOIA implementation; and publishes the DOJ’s comprehensive legal treatise on the FOIA. Trump’s authority to appoint the attorney general would enable him to shape the OIP’s priorities and operations. It would also enable Trump to influence the substantive arguments the government would make in FOIA litigation.
Third, could President Trump crack down on public affairs reporting? Yes, most likely in the area of national security—if his DOJ prosecuted journalists under, say, the Espionage Act, something that has occurred once before, or if his DOJ tried to obtain an injunction against publication, or prosecuted leakers and subpoenaed journalists to supply information. Another route would be to issue an executive order modifying how classified information must be handled, or allowing information to be classified for longer periods. Consider some examples from the Obama administration.
Obama’s DOJ has used the Espionage Act to prosecute government employees suspected of leaking to journalists more than all other administrations combined. Trump could carry on that tradition. Similarly, in 2013, Obama’s DOJ confirmed that it had secretly obtained phone records of Associated Press reporters and a “portfolio of information” about a Fox News correspondent, all to investigate the sources of various leaks. For seven years, too, Times reporter James Risen “lived under the threat of jail for refusing to reveal a confidential source” in the criminal trial of a former CIA officer accused of providing him classified information. Again, Trump could carry on those traditions—or worse.
On the bright side, Obama’s DOJ did create new guidelines limiting the DOJ’s discretion to obtain reporters’ records, and Obama pushed for a federal shield bill that would allow reporters to protect their confidential sources and data. The shield went nowhere, and it’s worth mentioning that White House concerns about some of its provisions initially were seen as threats to the bill. At any rate, a Trump administration probably would not go out of its way to create or push for similar journalistic protections.
Fourth, what if President Trump simply didn’t like the press, as he’s been saying on the campaign trail? What impact could that have? It could mean Trump would be less accessible to journalists or wouldn’t invite them to certain functions or press conferences. The big risk here is one Geoffrey Stone, a First Amendment scholar, explained in a Q&A for Slate:
The real question is: What is the vulnerability of the press to a president who is not respectful of the appropriate role the press plays, who treats them with disdain and regards them as a dangerous enemy, not only to himself but to the nation? There’s a large amount of information that the media get from the president that is then passed on to the American public, and that’s valuable, and a president has the authority to say, no, I’m not going to talk to you anymore. …[This] point is really an important one: the willingness to say, I’m not going to play by the rules, and I’m going to win, is what most presidents haven’t been willing to do.
Well, if the operative phrase is “I’m going to win,” maybe there isn’t too much to worry about.
Editor’s note (Nov. 9): The author regrets the last line of this article more than he regrets inviting his mom to chaperone a high school dance freshman year, previously his biggest regret.