President Trump, Please Stop Attacking The First Amendment of the Constitution That You Swore To Protect

Today at the CPAC convention the President of the United States made the following (outrageous) claim:

“Nobody loves it [the First Amendment] better than me.”

Unfortunately, when President Trump uses this kind of language, it is almost always followed by a bunch of statements antithetical to the protection of whatever he just claimed to love (it is like clockwork).

In essence, whenever he says he “loves” something we all should take a deep breath and wait for the “but” clause.

Today the “but” clause was a real doozy, especially for a guy who became President because he swore to, “preserve, protect and defend the Constitution of the United States.”

In his speech to a fawning audience, the President suggested that he respects the media outlets who attribute quotes to sources and suggested that fake news is any stories that refuse to attribute the sources responsible for particular quotes.

Here is exactly what he said at CPAC:

“A few days ago I called the fake news the enemy of the people, and they are. Because they have no sources. They just make it up when there are none. They make up sources. They’re very dishonest people. They did not explain that I called the fake news the enemy of the people. They dropped off the word fake. That’s the way they are. I’m not against the media. I’m not against the press. I don’t mind bad stories if I deserve them. I love good stories. I don’t get too many of them. I am only against the fake news media or press. I’m against the people that make up stories and make up sources. They shouldn’t be allowed to use sources unless they use somebody’s name.”

Here is the only proof he offered about invalid unsourced stories (which calls into question his entire first statement):

“I saw one story recently where they said nine people have confirmed. There are no nine people. I don’t believe there was one or two people. Nine people. And I said give me a break because I know the people. I know who they talked to. There were no nine people. But they say nine people. And somebody reads it and they say, oh, nine people, they have nine sources. They make up sources.”

So, according to the President of the United States, the press should not be allowed to publish stories unless they attribute names with quoted sources.

So where has the Supreme Court come down on anonymously sourced press content in the context of the first amendment?

As usual, President Trump’s understanding of current Constitutional Protections is more than a little lacking.

“To protect the press, courts have crafted a qualified privilege that protects the media from being forced to disclose the identities of confidential sources.”

Or, he is up to something sneakier.

If he wants to challenge particular stories now, he certainly has the ability to challenge the press. This “qualified privilege” that the press holds is not, unfettered but has been codified in almost every state:

In response to these tensions, proposals developed for a so-called “reporter’s privilege” -a legal construct that, when successfully invoked, would make the news reporter an exception to “the longstanding principle that ‘the public … has a right to every man’s evidence.”‘ Now embodied in state law by statute, constitutional provision, court decision, or court rule in nearly all fifty states, the privilege permits a reporter, under defined circumstances, to refuse to respond to a subpoena that seeks information the reporter received confidentially in the newsgathering process, and to avoid facing the contempt citation that might otherwise result from such a refusal.

NPR, for example, explains the usual press protocol followed, they:

…may withhold a source’s name who talks to us on tape or on the record, if that individual might be put in danger, legal jeopardy or face some other serious threat if their name is revealed. We may refer to the person without using a last name, if he or she is comfortable with that degree of anonymity and if we decide the situation meets our criteria for granting anonymity.

The President is either very naive, or he knows this and is purposely and cynically undermining the freedom of the press in the court of public opinion to enhance his own powers.

In other words, if he has a reason to attack the credibility of sourcing, he can avail himself of his vast legal apparatus at his disposal, but instead, I suspect he is up to something much more nefarious and maybe even fascist here, using people’s ignorance of the first amendment (and a confusing area of first amendment jurisprudence) to pressure the press to fall in line with his agenda.

It would be helpful, if first amendment scholars, and the leaders of newsrooms and news divisions, started to share the standards that they use before printing quotes from anonymous sources and challenge the POTUS to present evidence of malfeasance on the part of news divisions before making unsubstantiated and dangerous attacks on the Freedom of the Press.

The first amendment protects us all. For example, what if there is some truth to the stories of collusion between Russia and elements of the Trump campaign? Even if you love Trump, shouldn’t we still find out the truth?  So many conservatives were thrilled when Wikileaks released the Clinton campaign emails but they were thrilled for the exact same reason that we protect the freedom of the press, when only the people in power have complete control of what information can be released, corruption and fascism are the inevitable and predictable results.

Press outlets. Part of your job is to educate the public, so start educating the public (not defaulting to hosting three-person panels debating if what the President said was appropriate or inappropriate).  Put your so-called “media experts” on the sideline and start bringing in Constitutional Scholars and experts on Freedom of the Press. Most important, make sure people understand that the President has every right to challenge any story if he has evidence that it was inappropriately sourced (or made up). What he should not do, is make continual accusations of impropriety without proof.

Please stop letting the playing field and the strategic terrain be set ONLY by POTUS.

2 thoughts on “President Trump, Please Stop Attacking The First Amendment of the Constitution That You Swore To Protect

  1. As far as I can tell from your reasoning, I am in conflict with the first amendment when I write, “I think that, because ypsifactj’s blog posts are so illogical, no one anywhere should ever read them. I’m against them. Ypsifactj should not be allowed to write them.”

    In my opinion, I am well within my first amendment rights to criticize another person’s speech. The only way that I can actually be in violation of the first amendment is if I pass law that prohibits you from speaking.

    Did I miss the part where Donald Trump either passed a law, caused to be passed a law, or proposed that a law be passed that restricts anyone’s speech?

    Like

    1. Hello,

      So, first of all, a POTUS swears to preserve, protect, and defend the Constitution of the United States (not just not to pass laws that abrogate it). Specifically, I accused him of violating part of this oath when he said:

      “I’m against the people that make up stories and make up sources. They shouldn’t be allowed to use sources unless they use somebody’s name.”

      I quoted all of the relevant legal precedents for why that is violative in my article.

      In other words, yes, if I had argued that POTUS suppressed speech (and I didn’t), you would have a point.

      I am sure you already know that Presidents do not technically pass laws, although they could suppress executive branch speech through executive orders under very limited circumstances. Presidents could also under or over enforce existing laws in ways that would violate the First Amendment. Overbroad Executive Orders could certainly violate the First Amendment in other ways too.

      Presidents also have the ability to chill speech (I think it would be fair to say that he tried to do that today a few times) and to suggest and/or shepherd legislation that could potentially be found to violate the Constitution.

      I did not accuse the President of any of this. In point of fact, I simply asked him to please live up to his oath (even though I am well aware he could care less what I think).

      Now, that said, my job is to persuade you that something I say is true. If I fail to do that, you have every right to call me out or just ignore me, no problem.

      You have every right to your opinion and no obligation to agree with me. I know that I am probably supposed to escalate the name calling and insults no so that this can keep going, but that just is not my thing.

      You have every right to your opinion and I am sorry that I have offended your sensibilities with my posts (which you seem to find illogical and inane). I, like you, also have a right to my own opinion and to speak publically.

      I truly hope that the rest of your day is great!

      Like

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