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David P. Dillard
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Would President Trump Kill Freedom of the Press?
Would President Trump Kill Freedom of the Press?
What he couldnt doand what he could.
By Isaac Chotiner
A shorter URL for the above link:
In recent days, Donald Trumps campaign manager has been accused of assaulting a reporter (Trump defended his man), and the candidate himself has said that, as president, he might change libel laws and sue the media over negative stories. He has also urged violence against protesters at his rallies, while claiming that those protesters have violated his own First Amendment rights.
With these events in mind, I called Geoffrey Stone, a University of Chicago professor and the author of several books on the tension in American history between the First Amendment and the executive branch, and on press freedom more broadly. We discussed whether Trumps support of violence is illegal, the ways in which Trump might threaten the freedom of the press as president, and the consequences of a chief executive who despises the media. The conversation has been edited and condensed.
Trump has encouraged violence against protesters at his rallies, saying hed like to punch protesters himself, and offered to cover the legal fees of supporters who take matters into their own hands. Is such incitement covered by the First Amendment?
He is inciting violence, but not in a way that could be punished consistent with the First Amendment. Under existing law, a person can be punished for encouraging others to commit crimes only if he expressly incites violence and his speech creates a clear and present danger of serious harm. In this context, the present danger element isn't satisfied because there is plenty of time for others to encourage people not to be violent. Moreover, even if his expression creates a clear and present danger of violence, the First Amendment protects the speech unless the harm is serious. In these situations, a few fistfights probably arent sufficient to satisfy that standard.
What do you make of law enforcement officials kicking out even nonviolent protesters from his events?
These events are private. They are not government events. Like all private events, the host/sponsor is free to invite or exclude whomever he likes. There is no constitutional limitation on the private sponsor of such an event setting the rules for who can attend. It is like having a party in a restaurant and noninvitees crash the party. They are guilty of trespass and can be evicted and arrested. Of course, its a bit odd to apply that analogy to a large political event with thousands of people, but legally its no different. Put simply, as a private individual, Trump can invite whomever he wants to his party and if the purpose of the party is to celebrate him he can lawfully have those he doesnt want there removed. Of course, if they arent being disruptive its politically awkward to remove them because you look like a jerk, but thats never stopped Trump.
How insulated is our system from a president who wants to go after the press?
There are three ways in which a president can be punitive to members of the press that he does not favor: not invite them to press conferences, exclude them from access to other forms of information, and exercise the authority to prosecute them, hopefully when theres a legitimate basis to prosecute. In terms of press freedoms, the president cant do very much himself, unless youre talking about something thats violently against the Constitution. He would need legislation for the most part.
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? Theres a large amount of information that the media get from the president that is then passed on to the American public, and thats valuable, and a president has the authority to say, no, Im not going to talk to you anymore. The you can be the entire press corps or it can be selected members of the press, and the problem of the use of that authority is that it then manipulates the press into currying favor with the president.
I suppose we already have a version of that last part.
Right, but it can get a lot worse, and if you want access to information, and if you have a president who says, If you criticize me, youre never coming to a press conference again, there are members of the media who would shade what they say. Thats a huge power (and danger), which hasnt traditionally been exercised in any aggressive way.
Additional Topics Discussed in This Interview
We have many institutions in our democracy that operate on norms, not laws, and if someone or some people decide to violate those norms, then the system breaks down, as we have seen recently with Congresss vow not to confirm Barack Obamas Supreme Court nominee. Its similar to what youre saying about the press, right?
So if you have a demagogue who doesnt care about the press or elite opinion, then he will be more willing to go after the media?
Could Trump really change libel laws, as he has promised to do?
What do you find most troubling about Trump with regard to these speech issues?
It seems like thats several steps off, but you can see how it all starts.
How would you rate the Obama and Bush administrations in dealing with the press?
My sense is that on the one hand, First Amendment and press freedoms increase with time. On the other, it does seem that on issues like secrecy and prosecuting the press for leaks, it gets worse with every term.
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