A New Salvo in President Trump’s Offensive on the Free Press

Submitted on October 12, 2017

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On Wednesday, October 11, President Donald Trump reiterated one of his key strategies for making America great again: threatening the free press. Two Tweets and a statement in the Oval Office revealed what was on his mind:

With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!

— Donald J. Trump (@realDonaldTrump) October 11, 2017

Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!

— Donald J. Trump (@realDonaldTrump) October 12, 2017

In the video above, you can hear President Trump saying, "...it's, frankly, disgusting the way the press is able to write whatever they want to write. And people should look into it." Asked if there should be limits on what the press should write, President Trump answers, "No, the press should speak more honestly. I mean, I've seen tremendously dishonest press. It's not even a question of distortion."

So is Trump's Threat Credible?

"It’s an empty threat," said Andrew Schwartzman, the Benton Senior Counselor at the Institute for Public Representation, Georgetown Law Center. “The last thing that NBC is going to worry about is whether its broadcast licenses are in jeopardy.” The standard for renewing licenses has been "eased" over time: "The kinds of things that might theoretically have resulted in problems for a license have long since gone."

Schwartzman said the only time he could remember a large broadcaster losing its license was in the 1970s when a New York station's management was convicted of bribery. The license renewal issue also surfaced in 2012, when Rupert Murdoch's News Corp. was facing controversy over a phone-hacking scandal in Britain that some critics said raised the "character" question. However, Fox’s U.S. television licenses were not revoked.

President Richard Nixon also targeted broadcasters whose coverage he didn’t like amid the Watergate scandal and controversies over his Vietnam policies. NBC was a presidential target then, as now, though Nixon’s preferred threat was a potential antitrust lawsuit, which he held over broadcasters in a bid to influence their coverage.

"If the threat of screwing them is going to help us more with their programming than doing it, then keep the threat," President Nixon told a White House aide in July 1971. "Don't screw them now. [Otherwise] they'll figure that we're done."

The Nixon Justice Department eventually did file an antitrust lawsuit against television networks in April 1972 on the grounds they had a monopoly on prime-time entertainment with their programming. The suits were dismissed in 1974.

President Nixon also threatened The Washington Post's ownership of a Florida TV station, telling his staff the newspaper should be given “damnable, damnable problems” getting its FCC licenses renewed.

If the Threat isn't Credible, Is it Serious?

In the Columbia Journalism Review, Trevor Timm, the Executive Director of Freedom of the Press Foundation, a non-profit organization that supports and defends journalism dedicated to transparency and accountability, writes that President Trump need not act on his threats for his actions to be considered a First Amendment violation. There’s a compelling argument President Trump is in violation of the Constitution right now—after he crossed the line from criticism of protected speech to openly threatening government action.

There’s plenty of case law on this subject from the Supreme Court to appeals courts around the country. Most recently, in a case in the Seventh Circuit called BackPage LLC vs. Thomas Dart, Sheriff of Cook County, Illinois, just-retired Judge Richard Posner articulated exactly why Trump may already be running afoul of the First Amendment merely through his threats.

A public official who tries to shut down an avenue of expression of ideas and opinions through “actual or threatened imposition of government power or sanction” is violating the First Amendment. American Family Association, Inc. v. City & County of San Francisco, 277 F.3d 1114, 1125 (9th Cir. 2002).

As Vice President Mike Pence has already articulated, President Trump does have his own First Amendment right to opine about things he likes and doesn’t like—even in his caustic, insulting style. But as Judge Posner made clear, as a government official, those rights are limited:

A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens. “[A] government’s ability to express itself is [not] without restriction. … [T]he Free Speech Clause itself may constrain the government’s speech.” Walker v. Texas Division, Sons of Confederate Veterans, Inc., supra, 135 S. Ct. at 2246; see also Rosenberger v. Rector & Visitors of the University of Virginia, supra, 515 U.S. at 833–34.

President Trump is threatening NBC not as a private citizen, but as the President of the United States, from his Twitter account, which the White House has previously acknowledged is a vessel for releasing “official statements.”

Even if President Trump does not have the sole power to carry out the proposed punishment of revoking licenses or changing tax statuses himself, a case may still be actionable. As the Second Circuit Court of Appeals noted in 2003:

[T]he fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive … . What matters is the distinction between attempts to convince and attempts to coerce.

Reaction

On Wednesday, Senator Edward Markey (D-MA) called on Chairman Ajit Pai to reject any efforts by President Donald Trump or his administration to infringe on the First Amendment or undermine the independence of the FCC. Sen Markey wrote:

The First Amendment is the cornerstone of our democracy, and the news media plays an instrumental role in educating the American public and holding elected officials accountable. Any insinuation that elected officials could use the levers of government to control or sensor the news media would represent a startling degradation of the freedom of press.

In a separate statement, Sen. Brian Schatz (D-Hawaii) said:

The president’s threat against NBC and other media outlets is far from empty. In 1974, President Nixon and his top aides discussed using the FCC’s license renewal process to punish the Washington Post for its Watergate coverage. Today, Donald Trump has threatened to do the same to NBC. In confirmation hearings for Ajit Pai, we raised this possibility. Now, the FCC must show that it is loyal to the law, not the president, and make clear that it rejects this kind of interference.

Former FCC commissioners were also quick to counter President Trump.

“To me it’s just incomprehensible that because of the content of NBC News that somehow their license would be at risk,” said Alfred Sikes, a Republican who chaired the FCC under President George H. Bush. “Any kind of action would require a majority of commissioners and I find it very, very unlikely that based on arguments about the foundations of NBC News content that those licenses would be put up for review.” Sikes also took issue with the president’s even tweeting the suggestion of a government action over network reporting. “I believe any president using or attempting to use the levers of government to bring into line sources of news that he doesn’t like is inappropriate." And he argued that FCC complaints for so-called “fake news” would likely be treated like frivolous civil litigation. "Anybody can file a complaint," he said. "If you ask me whether I could sue you, the answer would be yes. But do I have any foundation for suing you? Obviously not."

Michael Copps, a Democrat who served as FCC commissioner from 2001 to 2011 and is a frequent contributor to Benton's Digital Beat, was similarly disturbed, "If such a threat were carried out it would be a blatantly-unacceptable intervention in the jurisdiction of an independent federal agency. It would have a chilling effect not just on NBC, but maybe even worse, small and independent stations who might not have the resources of NBC to fight back such an effort."

Copps added, "The best antidote to [fake news] in my mind is to have more real news and more investigative journalism. Too many reporters are walking the streets looking for a job rather than walking the beats looking for a story."

Legitimate Curbs on the Press

As Callum Borchers points out in The Washington Post, there are already Constitutionally-friendly restraints on the press. News outlets that defame or invade the privacy of the people they cover can be sued into extinction.

Just ask Gawker, which went bankrupt and shuttered last year after losing a case brought by Hulk Hogan.

Rolling Stone, which already has settled one libel suit resulting from a retracted report about sexual assault at the University of Virginia, put its majority ownership stake on the block last month, two days before a federal appeals court said a second lawsuit could move forward.

The consequences of bad reporting can be severe — contrary to the president's suggestion that journalists operate with total impunity.

Even when mistakes are minor and there is no legal risk, news outlets often hold themselves — and one another — accountable. Hours before Trump made his remarks, for example, Borchers called out MSNBC for misleading language in two social media posts. The network promptly acknowledged the flaws and removed the posts.

But President Trump obviously sees a more active role for the federal government to regulate the press. Just last week he said,

Why Isn't the Senate Intel Committee looking into the Fake News Networks in OUR country to see why so much of our news is just made up-FAKE!

— Donald J. Trump (@realDonaldTrump) October 5, 2017

When asked about the president's commitment to the First Amendment, White House Press Secretary Sarah Huckabee Sanders said, "The president is an incredible advocate of the First Amendment. With the First Amendment ... with those freedoms also come responsibilities. You have a responsibility to tell the truth. To be accurate."

But Sanders did not go as far as reiterating the call for a Congressional investigation saying instead, "I do think that we should call on all media to a higher standard. I think you have a lot of responsibility, and a lot of times false narratives create a bad environment, certainly aren't helpful to the American people, and you have a responsibility to provide and report fair and accurate details. When we don't, that's I think troubling for all of us.”

Sanders pointed to a recent Pew Research study that found only 5 percent of news coverage of the Trump administration has been positive, a figure that is well below what the organization found for Presidents Obama, George W. Bush, and Clinton.

She accused the media of ignoring positive stories about the stock market, economy, and fight against terror.

“You've only found 5 percent of your time to focus on those big issues,” Sanders said. “Frankly those are the issues the American people care about, not a lot of the things you cover, not a lot of the petty palace intrigue that you spend your time on. I think we need to move toward a certainly more fair, more accurate, and, frankly, a more responsible news media for the American people.”

The Role of the FCC in Regulating the Press

Every television station -- whether it is owned or just affiliated with national networks like NBC, ABC, CBS, or Fox -- is licensed by the Federal Communications Commission to serve a local community such as New York, New York; Waco, Texas; or North Platte, Nebraska. So President Trump's call to challenge NBC's license would mean a FCC review of some 211 stations. That would be a big job for the FCC. How did the five FCC Commissioners respond to President Trump's statements?

Revoking a #broadcast license on such grounds will only happen if we fail to abide by the First Amendment. https://t.co/iApwZlRuKd

— Mignon Clyburn (@MClyburnFCC) October 11, 2017

Freedom of the press is a cornerstone of our democracy. Hope my @FCC colleagues can all be on the same page with respect to 1st Amendment. https://t.co/1aNpYsk7BG

— Jessica Rosenworcel (@JRosenworcel) October 11, 2017

Not how it works.

See here: https://t.co/1JgiJyk5wK https://t.co/1aNpYsk7BG

— Jessica Rosenworcel (@JRosenworcel) October 11, 2017

Response from the FCC's Republican majority? Chairman Ajit Pai and Commissioners Michael O'Rielly, and Brendan Carr: crickets.

What's surprising is that FCC Chairman Pai is a celebrated Freedom of Speech Award recipient. As he's said, "[A]nyone who has the privilege of serving at the FCC—any preacher with a pulpit, if you will—has the duty to speak out whenever Americans’ First Amendment rights are at stake."

The relevant passage that FCC Commissioner Rosenworcel points to is:

The FCC and Freedom of Speech. The First Amendment, as well as Section 326 of the Communications Act, prohibits the Commission from censoring broadcast material and from interfering with freedom of expression in broadcasting. The Constitution’s protection of free speech includes that of programming that may be objectionable to many viewer or listeners. Thus, the FCC cannot prevent the broadcast of any particular point of view. In this regard, the Commission has observed that “the public interest is best served by permitting free expression of views.”

Local residents or competitors can file a challenge when a station serving their community asks for a license renewal, but those challenges face a high bar: To be at risk of losing its license, the station must have systematically violated the FCC’s rules or lack the requisite character (usually defined as a felony conviction).

Conclusion

Back in January, I wrote about the Trump Administration's first days and its combative relationship with the press. I asked then, "Will the people be the losers in this fight?"

In the last two weeks, we're seeing signs that this Administration interprets the First Amendment as a responsibility of the press to report accurately -- or, at the very least, favorably -- on the president. I am left to wonder when Republican Commissioners on the FCC, who took an oath to uphold the Constitution, will speak out to protect the First Amendment.

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