The first Donald Trump administration was a dire period for press freedom. Alarmingly, Trump’s recent behavior suggests a looming escalation in his efforts to stifle critical coverage.
His threats against major media organizations have grown more existential.
Before the election, he called for revoking CBS’s and ABC’s broadcast licenses. First Amendment doctrine provides surprisingly wide latitude for the federal government to regulate broadcast networks in the public interest. And while federal law and current Federal Communications Commission policy provide protection against viewpoint-based attacks on the media, newly empowered Republicans could weaken those protections.
That makes Trump’s nomination of current commissioner Brendan Carr for FCC chair troubling. Carr has recently indicated he will support Trump’s efforts to wield regulatory authority to coerce major broadcast networks, including by targeting their licenses.
Trump has also grown more brazen in his efforts to intimidate journalists. His farcical lawsuit against the Des Moines Register and its renowned pollster Ann Selzer over a pre-election poll showing him trailing Vice President Kamala Harris stands little chance of success. So too for the lawsuit that he filed against CBS News and “60 Minutes” for the program’s editing of a pre-election interview with Harris.
Although frivolous, the lawsuits send a clear message that Trump is willing to abuse legal processes to the point of absurdity in attacking his perceived enemies.
Project 2025, Kash Patel
Conservative organizations are stoking Trump’s crusade against the press.
Project 2025, the Heritage Foundation’s radical agenda urging dramatic upheaval of federal operations, calls for defunding the Corporation for Public Broadcasting. That could deal a death blow to cherished institutions like National Public Radio and Public Broadcasting Service.
Also at risk is Voice of America, the international broadcast network slated by Project 2025 to be “fully reformed top to bottom.” Observers worry that means transforming Voice of America into a propaganda organ abroad for Trump. His attempt to install election denier Kari Lake to run the network is an ominous sign despite Lake’s denials that she will refashion it into “Trump TV”.
Beyond Project 2025, important protections for the press implemented by the Biden administration will almost certainly be undone in the coming months. One likely target is a Department of Justice policy that generally prohibits prosecutors from obtaining sensitive information from journalists engaged in newsgathering.
Trump’s first administration aggressively pursued leakers, including by secretly accessing journalists’ phone records. Here too, the threat is exacerbated by Trump’s personnel choices.
His nominee to lead the FBI, Kash Patel, has repeatedly made public statements threatening to prosecute journalists and facilitate civil suits against them. DOJ policies designed to improve governmental transparency are also likely on the chopping block.
The grim outlook for the press is made grimmer by Congress’s failure to enact bulwarks against Trump’s worst impulses. A glaring example is the demise of the Press Act, a bipartisan bill that would have enshrined into law many of the protections for journalists’ sensitive information adopted under President Biden.
The act was passed unanimously by the Republican-led House of Representatives earlier this year. But Trump called for Republicans to kill the bill following his election victory, and U.S. Sen. Tom Cotton, R-Ark., obliged. It now appears dead for the foreseeable future.
Congress also failed to pass legislation that would have strengthened protections against frivolous defamation lawsuits.
Congress’s dereliction leaves the courts as a last line of defense for the press. Supreme Court Chief Justice John Roberts has long taken pride in his belief that his court is the most First Amendment-protective in history. And experts have speculated that, should Carr’s FCC indeed move to strip CBS’s broadcast license, the Supreme Court would intervene and overrule the longstanding precedents that allow for more extensive governmental regulation of broadcast networks than of other media entities.
But the press has fallen out of favor with the court in recent decades, muddying the prospects for sweeping First Amendment victories. As a result, news organizations are playing defense. For example, Disney CEO Bob Iger recently instructed ABC attorneys to settle a winnable defamation lawsuit filed by Trump against the network, in part because the company feared that the Supreme Court could use the case to roll back foundational First Amendment protections for the press.
That peril will worsen substantially if Trump is able to reshape the court’s membership even further in his second term.
Tyler Valeska is an assistant professor at Loyola University Chicago School of Law.
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