Local experts discuss the legal hurdles and issues facing President-elect Donald Trump in his first 100 days in office. This week, the President Trump and the First Amendment.
In our system of checks and balances, the First Amendment serves as an important check against government overreach and the arbitrary exercise of power. It guarantees, among other things, the freedom of expression by prohibiting the government from restricting the press or individuals from speaking freely, including criticizing government action, and it guarantees the rights of citizens to peaceably assemble and to petition the government.
Over the course of the campaign, transition and upon taking office, President Trump made several comments that raised concerns that he either didn’t understand or didn’t respect the guarantees contained in the First Amendment.
During the campaign, Trump said he would open up libel laws so that news organizations could be more easily sued. As president-elect and as president he has continued his attacks on the press, questioned the propriety of protests against his actions, and condemned individuals who have criticized his decisions.
While it is unlikely that Trump will dramatically alter the protections guaranteed in the First Amendment, he could successfully diminish their vitality.
Freedom of the Press
The press is an important check against government overreach. By shining a light on government action, the press plays a critical role in uncovering abuses and informing the public.
During the campaign, Trump pledged to “open up federal libel laws” to make it easier to sue news outlets that write unfavorable stories. Libel law is a matter of state law and presidents cannot alter it. If Trump wanted to limit the freedom of the press he would either have to seek a constitutional amendment, an unlikely avenue of redress, or the Supreme Court would need to overturn the First Amendment principles governing libel laws.
In 1964, the Supreme Court in New York Times Co. v. Sullivan declared that a public person, such as Mr. Trump, can win a suit against a news organization only if the person can prove that it published information with actual malice, knowing it to be wholly incorrect. The standard set a high bar, making it difficult for a public figure to win a libel lawsuit.
The American Bar Association (ABA) commissioned a report on. Trump’s litigation history involving libel. The report, written by media lawyers, concluded that Trump was a “libel bully” who had filed many meritless suits attacking his opponents and had never won in court. Ironically, the ABA declined to publish the report, in part because it feared a lawsuit. The ABA’s reticence proves the study’s conclusion, that Trump has used state libel laws to silence critics.
But Trump doesn’t need to alter the Constitution or the libel law standards to dilute the press’ ability to act as a structural check against government overreach. First, by broadly attacking the press, he undermines the press’ ability to act as a check on government action. If reporters are the “most dishonest human beings on earth,” then the public cannot believe what they report, especially if it counters Trump’s position.
Second, Trump is opaque, refusing access to basic information about his finances, businesses and now his administration. In the past, the press relied on politicians for access to information, and politicians relied on the press to disseminate their message. This is no longer true. Upon taking office, Trump prohibited several federal agencies from issuing press releases or speaking to the press. Instead, Trump delivers his message directly to the public through social media, claiming that any counter narrative is “fake news.”
Trump is not alone in seeking to place limits on First Amendment guarantees. At least eight states have legislation pending that would curb the right to protest. Whether these bills will become law and whether, in final form, they will violate the right to “peaceably assemble” is uncertain; it bears watching.
It is too early to tell how Trump will shape these First Amendment guarantees, but it is important to be vigilant. Thomas Jefferson said of the First Amendment: “Our liberty depends on the freedom of the press, and that cannot be limited without being lost.”
Next week: Does President Trump’s travel ban violate the First Amendment?
Santa Barbara and Ventura Colleges of Law (COL) Dean Jackie Gardina’s experience in higher education includes both academic and administrative positions.
Established in 1969, COL, an accredited nonprofit institution was founded to expand opportunities and broaden access to legal education. For more information, visit www.collegesoflaw.edu.