News Analysis: The threat Trump poses to the press

By William H. Freivogel >>

If President-elect Donald Trump follows through on the threats and actions he directed at the press during the election campaign and his first administration, an already weakened press could be further harmed over the next four years.

A weaker press, in turn, weakens an important constitutional check on government, one that is especially important when one party controls all the levers of governmental power.

That is the view of media lawyers in Missouri and Illinois. 

One lawyer, in a hopeful aside, said Wednesday, “Today is a sad day, but I hope that the vitriol against the media was just political theater.”

Trump’s vitriol has sometimes seemed like theater delivered off the cuff to amuse supporters – such as Trump mentioning last weekend that his bullet-proof podium would protect him if someone fired through the press area. “To get me, somebody would have to shoot through the fake news, and I don’t mind that so much,” he said.

But on election night, the Trump campaign took more concrete steps when it denied press credentials to news organizations that had been critical of the former president – Politico, Axios, Voice of America, Puck and Mother Jones.

In Trump’s first term as president, the White House played politics with assigned seats in the White House press room, providing a credential for the Gateway Pundit, the St. Louis-based purveyor of right-wing conspiracies, such as the false claim about ballot boxes being stuffed in Georgia in the 2020 election.

The Project 2025 document prepared by the Heritage Foundation as a blueprint for a Trump presidency suggests that the White House is getting crowded and that the “new Administration should examine the nature of its relationship between itself and the White House Correspondents Association,” which normally makes these decisions. The Heritage document suggests the administration “consider whether an alternative coordination body might be more suitable.”

During his first term, Trump frequently criticized Jeff Bezos, the Amazon CEO whose Washington Post published prize-winning investigative stories on Trump. Trump threatened Bezos about Amazon and tried to get the postal rates raised. Trump also intervened to keep Amazon from getting a $10 billion cloud computing contract from the Defense Department.  In 2017 Trump’s Justice Department, at his behest, tried to block a merger between AT&T and TimeWarner because he was mad at CNN coverage. During the just-concluded campaign, Trump complained about the fact-checking by Disney-ABC moderators at the presidential debate and told Fox “They ought to take away their license.” Political disagreement is not a reason to take away a broadcast license, the FCC responded. 

Significant dangers

Mark Sableman, a partner at Thompson Coburn and long-time media lawyer, wrote in an email about the impact of the Trump win on the press: “two significant dangers come to my mind: intimidation of the media, and weaker judicial support for the media’s First Amendment protections in practice.

“Trump will try to intimidate the media. We know that, and of course other presidents have tried too, including most notably (Richard M.) Nixon.  But it is particularly worrisome today because the professional news media is financially weak, and because some media owners have shown that they are susceptible to intimidation.  Bullies are encouraged when they sense weakness.”

Sableman said he thinks the New York Times v. Sullivan decision, making it hard for public officials to win libel judgments, probably won’t be revised despite Trump’s criticism, which dates back to his first term.

“I personally doubt that the Thomas-Gorsuch attack on Times v. Sullivan will succeed in getting that key precedent overturned,” he wrote.  “But many Trump-appointed judges seem to look to the Court’s extreme right for signals. Knowing the Thomas-Gorsuch position (against Sullivan), loyalist Trump judges may hesitate or even refuse to enforce Sullivan or other current media First Amendment protections.  Media rights on paper don’t mean much if judges in particular cases won’t timely enforce them.”

Greg Magarian, the Thomas and Karole Green Professor of law at Washington University, also cited Trump pressure on broadcast licenses and on the Sullivan libel decision as areas of concern.

He added, “Trump’s victory has multiple negative implications for the press and press freedom.  Most obviously, Trump has deep contempt for the truth and for efforts to report on reality.  He and his movement are a cancer of misinformation and disinformation.

“ On a policy level, Trump has made multiple threats against press freedom, from eviscerating New York Times v. Sullivan to seizing licenses of broadcasters.  All of this is grounded in his ego rather than in any deep policy vision, but he will have plenty of enablers and henchmen with more fully formed ideological commitments to attacking the press.  

“We still have some guardrails, like principled judges and regulators, who will block some of Trump’s abuses, and of course the press knows how to raise its voice.  But ‘the press’ gets more diffuse and disaggregated every day, which exacerbates news organizations’ vulnerabilities. In addition, this election represents a win for the worst elements of the news media: propaganda factories like Fox News and Newsmax.  As with Trump himself, these outlets are more venal than principled.  For now, they have strong evidence that their sludge sells, and they will only make it more rancid.”

Joseph E. Martineau, a member at LewisRice, has represented the St. Louis Post-Dispatch for decades.  “I have represented media entities for 40 years,” he wrote, “and while I do not always agree with what they write and say, I am thankful that they, like the rest of us, are free to express themselves. More importantly, facts are facts and actions are actions, and while those in politics may not always be happy with the reporting of those facts and actions, it is crucial that an informed citizenry be aware of them and allowed to act in peaceful fashion on them. Stifling the media or telling it what it must report or not report is not consistent with a free society such as we have in the United States but represents the philosophy of tyrannical regimes.”

In the first Trump administration, a steep tariff on newsprint from Canada raised the cost of printing daily papers. Donald M. Craven, lawyer for the Illinois Press Association, says it was felt by papers big and small, causing a number to cut back on how many days a week they delivered. “Imposing an additional cost on newspapers, at a time when the industry is already under great stress, is not a great idea.” Craven wrote in an email. A U.S. trade commission overturned the tariff, finding U.S. companies hadn’t shown they were harmed.

Espionage and confidential sources

Trump has suggested in strong language that judges should use unpleasant jail conditions – jail rapes – to force reporters, editors and publishers to disclose confidential sources.

In 2022 he said at a Texas rally, “When this person realizes that he is going to be the bride of another prisoner shortly, he will say, ‘I’d very much like to tell you exactly who that was,’” Later in Ohio he added, “The publisher too — or the top editors” should also receive that kind of treatment.

Project 2025 concluded, “The Department of Justice should use all of the tools at its disposal to investigate leaks and should rescind damaging guidance by Attorney General Merrick Garland that limits investigators’ ability to identify records of unauthorized disclosures of classified information to the media.”

Garland had issued protective guidelines after it was disclosed Trump had ordered the surveillance of eight reporters from the Washington Post, New York Times and CNN as part of more than 334 leak investigations.

The Trump administration became the first in history to file criminal charges under the Espionage Act against a self-described journalist, Julian Assange, publisher of WikiLeaks. Recently Assange pleaded guilty as part of a plea-bargain.

Confidential sources are the lifeblood of reporting, especially in the nation’s capital. Congressional aides and government staffers usually won’t disclose critical information about the government unless they are speaking on background or off-the-record.

The Supreme Court decided half a century ago that the First Amendment doesn’t protect the reporter/source relationship the way the confidences between doctor and patient, lawyer and client or priest and penitent are protected. 

Almost all states have some degree of protection for the reporter-source relationship in their laws or court decisions governing state courts. They’re called shield laws. But there is no federal shield law for federal courts, which is why the New York Times’ Judith Miller spent 85 days in jail for not disclosing that Irve Lewis “Scooter” Libby, former chief of staff to Vice President Dick Cheney, had been the source of the leak that Valerie Plame was an undercover CIA agent. The 2003 leak was part of Cheney’s effort to discredit Plame’s husband who had undercut the administration’s case for going to war with Iraq.

The U.S. House passed the PRESS Act establishing a national shield law in January, but Sen. Tom Cotton, R-Ark., has bottled it up in the Senate Judiciary Committee, maintaining, the press “has a long and sordid history of publishing sensitive information from inside the government that damages our national security. During the Vietnam War, the New York Times published the Pentagon Papers in an effort to demoralize the American people and turn them against the war effort.”

But it was the disclosure of the Pentagon Papers that Cotton refers to that led the Supreme Court to explain the importance of the press as a check to a single party government – Democrats in those days – who had led the country into the Vietnamese swamp. Justice Potter Stewart laid out the role of the press as a constitutional check. He wrote:

“In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry — in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For, without an informed and free press, there cannot be an enlightened people.”

Plans for NPR and Voice of America

Project 2025 has plans for zeroing out federal funds for public broadcasting and removing the journalistic protections from the Voice of America and Radio Free Europe.

As long ago as the Nixon White House, a young lawyer named Antonin Scalia, the same Antonin Scalia who led the rightward shift on the U.S. Supreme Court, called for ending federal support to public broadcasting or be “confronted with a long-range problem of significant social consequences — that is, the development of a government-funded broadcast system similar to the BBC.”

Mike Gonzalez, a former Wall Street Journal editorial page editor now at the Heritage Foundation, wrote in the Project 2025 chapter on the Corporation for Public Broadcasting that,  “Every Republican President since Richard Nixon has tried to strip the Corporation for Public Broadcasting (CPB) of taxpayer funding… All of which means that the next conservative President must finally get this done and do it despite opposition from congressional members of his own party if necessary. To stop public funding is good policy and good politics.”

 The U.S. Agency for Global Media, which oversees the Voice of America, Radio Free Europe and Radio Martí, acts as a firewall to protect the journalistic integrity of those news sources. But the Project 2025 report sees the firewall as an instrument of left-wing propaganda.. It says: “Often, the ‘firewall’ is touted when journalists are either promoting anti-American propaganda that parrots adversarial regime talking points or promoting politically biased viewpoints in opposition to the VOA charter.”

Instead, the agency “should report to the President and coordinate activities with the National Security Council,” to which there should be “clear lines of command.” If that can’t be accomplished, the agency should be “defunded and disestablished,” Project 2025 states.

Section 230 and social media

Brendan Carr, an FCC commissioner appointed by Trump, wrote the Project 2025 report on the FCC and calls for legislation that “scraps” Section 230 of the Communications Decency Act. That 1996 law gives social media legal immunity from being sued for the billions of third party postings that fill their space everyday. 

Carr wrote: “Congress should (ensure) that Internet companies no longer have carte blanche to censor protected speech while maintaining their Section 230 protections.”

Missouri Attorney General Andrew Bailey made that argument in the U.S. Supreme Court last year and had his hat handed to him. Bailey and Missouri’s two U.S. Senators – Republicans Josh Hawley and Eric Schmitt -– claimed that social media companies and the Biden administration were involved in the greatest infringement of the First Amendment in history when false and dangerous social media posts are taken down – posts with vaccine conspiracy theories, Trump’s notion that injecting bleach might help treat Covid and election lies peddled by Trump after he lost the 2020 election.

The Supreme Court’s 6-3 majority, which included conservative justices, told Missouri it didn’t have legal standing to sue and that government officials don’t violate the First Amendment by pointing out to media companies that dangerously false information is posted on their sites.

William H. Freivogel is a former editorial page deputy editor for the St. Louis Post-Dispatch and contributes to St. Louis Public Radio. He is a member of the Missouri Bar and covered the Supreme Court. He is the publisher of Gateway Journalism Review.

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