Less than a month before the U.S. presidential election, the Committee to Protect Journalists issued an unprecedented statement denouncing the then-Republican nominee. “[Donald] Trump has insulted and vilified the press and has made his opposition to the media a centerpiece of his campaign,” said the committee, a New York-based organization that promotes press freedom. “A Trump presidency would represent a threat to press freedom in the United States.”
With little more than two months before Trump takes the oath of office, the threat to the media—and the public’s right to know—is reality. However, President-elect Trump may find a thicket of laws and Supreme Court precedents limit his maneuvering—slight comfort for those working to protect a free press.
‘Definitely Reason for Concern’
At the president-elect’s often incendiary rallies, Trump frequently blasted the press as “dishonest,” “disgusting” and “scum.” The crowds that gathered to watch him would often turn and jeer at the reporters, hemmed in the press pen.
On the internet, the vitriol from Trump fans continued. In April, the journalist Julia Ioffe received a barrage of anti-Semitic abuse and death threats after she wrote a critical profile of Trump’s wife Melania for GQ magazine. In October, a Trump supporter sent Newsweek ’s Kurt Eichenwald ( who has been vocal about his epilepsy) a video that triggers seizures. Other Newsweek staffers have received anti-Semitic slurs on Twitter and memes about hanging journalists from trees.
Even the few news outlets who backed Trump weren’t always safe. In March, Florida police charged Trump’s then-campaign manager Corey Lewandowski with battery after he appeared to grab Breitbart reporter Michelle Fields as she approached Trump to ask him a question. (Florida ultimately decided not to prosecute Lewandowski, and he landed a job at CNN.)
Amid the threats and abuse, Trump—who once gave interviews to any outlet that would pay him attention—started turning on the press. At a Texas rally in February, Trump made a promise. If elected president, he said, “I'm going to open up our libel laws so when [journalists] write purposely negative and horrible and false articles, we can sue them and win lots of money.”
Could he do this? Probably not, says Craig Aaron, the president of the U.S. advocacy group Free Press. Aaron points out that the U.S.’s free speech protections through law and Supreme Court precedent make it difficult for a public figure to sue the press and win. “And as he’ll learn—if he hasn’t already—there’s no more public figure than a president,” Aaron says. “Though I suppose in theory he could badger journalists with frivolous lawsuits.”
But whether Trump’s threat was realistic, it had a chilling effect on news organizations. His rise was “the most distressing campaign in memory, from the perspective of press freedom,” says Suzanne Nossel, the executive director of PEN American Center, which advocates for free expression. In short, there has probably never been a presidential candidate so openly and publicly hostile to the press.
Now that he’s won, “there's definitely reason for concern,” Nossel says. “If the campaign and his past history are any indication, this will be a president who is dismissive of the role of the press. Accusatory. Punitive in his treatment of journalists. Arbitrary. Secretive when he wants to be.”
Throughout the campaign, Trump denied press credentials to a range of news organizations, from BuzzFeed to Politico to the Washington Post . At the time, Post editor Marty Baron described Trump’s ban as “a repudiation of the role of a free and independent press.” (Perhaps keen to get back in Trump’s good graces, the Post ’s owner, Amazon founder Jeff Bezos, recently tweeted : “Congratulations to @realDonaldTrump. I for one give him my most open mind and wish him great success in his service to the country.”)
Precedents Protecting the Press
Trump, of course, has not yet assumed the powers of the presidency. But his refusal to allow a press pool to accompany him to his meeting with President Barack Obama on Thursday suggested that his hostility toward reporters has not waned. In newsrooms all over the country, journalists are now wondering: What happens to a free press under President Trump?
First, the good news. The U.S. Constitution, and a succession of Supreme Court rulings, will ensure that the press is somewhat shielded against the caprices of a man who has openly mused about suing news outlets who report critically on him.
“The First Amendment guarantees that Congress can make no law that abridges the freedom of the press,” writes Andrea Hatcher, associate professor and chair of the department of politics at the University of the South, in an email to Newsweek. “A free press is part of the American identity. And textual Constitutional guarantees have always been rather sacred.”
In recent decades, the Supreme Court has consistently ruled to protect the press’s freedom. Camila Vergara, a PhD candidate in political science at Columbia University and an adjunct lecturer in political theory at New York University, outlined three landmark decisions to Newsweek that she said would keep news outlets free to criticize Trump.
The first ruling came in 1931, in Near v. Minnesota , when the Supreme Court found that a state law allowing prior restraint of the press—essentially, censorship in advance—was unconstitutional.
The second—which could stymie Trump’s February promise to sue journalists and “win lots of money”—was in 1964 with New York Times v. Sullivan, which established the “actual malice” standard. The court unanimously decided that for a public figure to win a libel suit against the media, he or she had to prove the outlet acted with “actual malice”—essentially, that the report was known to be inaccurate or that it was published with reckless disregard for its veracity.
Finally, the third decision, again involving the New York Times , saw the court rule in 1971 that the U.S. government (the other plaintiff) could not stop the Times and the Washington Post from publishing the then-classified Pentagon Papers, documents which detailed the nation’s involvement in Vietnam. The ruling, Vergara says, “puts the burden of proof on the government, to prove that publication of sensitive information would undermine national security.”
In other words, the Supreme Court has had the press’s back. The trouble is that there’s a vacancy on the court, created by the death of Justice Antonin Scalia in February. Two of the sitting judges, Anthony Kennedy and Ruth Bader Ginsburg, are over 80 years old. Should they die or retire, Trump will have the chance to appoint two more justices to the bench. (In September, sources claimed that Trump wanted to nominate the Silicon Valley billionaire Peter Thiel —a man who is also notorious for bankrolling the lawsuit that sued Gawker out of existence—to the court. Spokespeople for both Trump and Thiel denied the reports.)
“What now is frightening—for a free press and other freedoms we hold dear—is that the president is positioned to create a court that can interpret the Constitution in ways that undermine our liberty—even those that we thought to be inviolable,” writes Hatcher. “Unified ideological control of the three branches of government, plus many of the state governments, means that institutional checks and balances are more vulnerable than they have ever been.”
Intimidation and Threats
Even if the Supreme Court continues to protect the First Amendment, and with it the U.S. press, there are other ways that Trump could limit journalistic freedoms. The pattern is intimidation and threats. In September, for instance, he threatened a lawsuit against the New York Times .
My lawyers want to sue the failing @nytimes so badly for irresponsible intent. I said no (for now), but they are watching. Really disgusting— Donald J. Trump (@realDonaldTrump) September 17, 2016
The following month, when the Times published an article about the women accusing Trump of assault, the candidate claimed he was going to sue the newspaper and the women who went on the record.
He never pursued these lawsuits. The discovery process would have been too damaging, as commentators noted, and he would not have had much of a case: The Times story was a piece of newsworthy reporting on someone who is obviously a public figure. So the newspaper refused to back down. “We welcome the opportunity to have a court set him straight,” the Times’ lawyer wrote in a letter to Trump's counsel.
But Trump’s intimidation was enough to get his point across. Other news outlets lack the resources that the Times has to defend itself against a potential libel suit (a more vulnerable newspaper with lesser resources might have backed down). Plus, “the election outcome has taught him that going to war with the press works, so why would he change now?” says Aaron. “I suspect Trump will use the power of his office in the more predictable but no less problematic ways we’ve glimpsed on the campaign trail: intimidating journalists, turning his bully-pulpit power against them and trying to delegitimize the role of an adversarial press at every opportunity.” He also predicts Trump will expand the Obama administration’s war on whistleblowers.
Nossel is worried but cautiously optimistic.
“He doesn't seem to understand or respect the principles of press freedom that is so important in this country,” she says. “Maybe that'll change. There's a certain solemnity of responsibility that's maybe setting in for him now.” Regardless, her organization will be watching. “I would be surprised if we don't have a busy time ahead of us,” Nossel says.
‘Don’t Normalize; Scrutinize’
To some people, these concerns might seem trivial. Across the U.S., marginalized groups more vulnerable than journalists are terrified for their future—with some ethnic minorities already falling victim to abuse. But a free press is one of several entities that gives voice to the voiceless. If a Trump administration restricts and limits it, the effects will reverberate far beyond the news organizations.
So what’s the plan? How can journalists prepare themselves for the age of Trump?
Aaron offers some advice. “Don't normalize; scrutinize,” he says. “Don't be a stenographer. Stay away from the press conferences and golf courses and dig into the documents, appointments and policies —including policies that will shape journalism, the internet and the media business.”
What else? “Stand up for those asking President Trump hard questions. Show solidarity with everyone committing acts of journalism even if they don't have fancy credentials. Get a good lawyer on speed dial. And encrypt everything.”