Sign up for Executive Dysfunction, a weekly newsletter that surfaces under-the-radar stories about what Trump is doing to the law—and how the law is pushing back.
Something profound is happening to the right to gather news. Don Lemon is on trial for covering an anti-ICE demonstration. A Washington Post reporter’s home was searched and her devices seized by the FBI. Last week, Stephen Colbert’s interview with a Democratic politician from Texas was barred from the airwaves by CBS on vanishingly thin claims about equal time.
On this week’s Amicus podcast, Dahlia Lithwick spoke to two scholars and researchers, Sonja West and RonNell Andersen Jones, about the press clause of the First Amendment. Their recent book, The Future of Press Freedom: Democracy, Law, and the News in Changing Times, is a vital read for anybody who cares about this battered pillar of democracy. Sonja West is the Otis Brumby distinguished professor in First Amendment law at the University of Georgia Law School. RonNell Andersen Jones is a university distinguished professor and the Lee E. Teitelbaum chair in law at the University of Utah. Both have been visiting research scholars at the Knight First Amendment Institute. This conversation has been edited and condensed for clarity.
Dahlia Lithwick: Whenever we talk about First Amendment freedoms, we tend to skip over the press clause, and race to speech and assembly, and yet, the press clause is actually its own unique bulwark against tyrannical government. Can you walk us through what it is the Framers were thinking when they named us and said, “You’re special”?
Sonja West: The First Amendment very explicitly says that among our other wonderful freedoms we have explicit protections for freedom of the press. The Supreme Court has spent a lot of time talking about the First Amendment, and yet for some reason, the freedom of the press has not gotten the same kind of attention. I often refer to freedom of speech as the Supreme Court’s favorite child, while the press clause, the freedom of the press, is the neglected child. It is the one that seems to be standing quietly in the corner that the court never talks about, certainly increasingly never talks about anymore, does not imbue with wonderful gifts of powers to be able to do wonderful things to make sure we all have this important protection.
This is perplexing if you look at the history, because the Framers were not exactly clear about precisely what they meant when they were giving us this right of a free press, but they were extremely clear that they thought it was incredibly important. In fact, James Madison referred to it as one of the three great rights he considered protected in the Constitution, higher, even among others. It was far more prominent in the discussions in the Constitutional Convention and in early state constitutions than the freedom of speech. Nine out of the 11 states that adopted revolutionary constitutions included protections for freedom of the press. Only one included protections for freedom of speech.
When it came to creating this new government, rebelling against and pushing back against restrictions we had experienced under English common law, press freedom was seen to be essential. And it was not just an individual right—like the individual freedom we celebrate when it comes to freedom of speech—but a structural right. We saw it repeatedly called a bulwark of liberty. It was meant to be something there to push back against government power and to be informed in a way that would allow the people to effectively self-govern. And yet over time it has blurred with freedom of speech into this concept of free expression, but increasingly just disappeared.
You wrote this very prescient article in the New York Times in 2017, “Don’t Expect the First Amendment to Protect the Media.” You warned that what we believed to be hard and fast rules protecting the free press were really just soft norms. Were the attacks on the free press as serious then as what we’re seeing now? Or did they learn from the clown car version of attacks on the press that we saw in the first administration and now we’re seeing meaningful attacks?
RonNell Andersen Jones: I think that the components of the playbook have escalated from laying the foundation for rhetorical delegitimization of the media to larger institutional incapacitation, and financial strangulation, and regulatory obstruction, and access restrictions; the sorts of things we didn’t see the first time around. And all of those components are probably best seen, not as isolated acts of hostility, but pieces of a coherent project, a series of orchestrated tactics that are probably designed to erode the press’s access and independence and capacity and legitimacy. We’re in a different phase of it now.
Those attacks on the media, during the first Trump administration, and throughout the second and third campaigns, were already more significant than we saw from other presidents and other public figures in American history. But the pivot we’ve seen in the second administration has domestic and international press freedom scholars concerned, because they are more of a pattern of law fare and economic pressure against the press, and the weaponization of previously independent bureaucracies against what seemed to be disfavored media. The fact that we didn’t have hard law to protect against this allowed the first layer of vilification, and the incursions this time around have a lot of folks scrambling to figure out what to do about the harder push that we’re now experiencing.
Sonja West: We are absolutely seeing this escalation in second-term Trump compared to first-term Trump. They have learned their lessons from what they did during the first term, and what they did during the first term was serious. We had never seen anything like that—even though presidents privately say they don’t like the press because they are an obstacle to things that they are trying to do. The Obama administration didn’t like the press, but they still felt an obligation to talk publicly about the value of a free press and to say that the press should have freedom to do their work. During President Trump’s first term, having a sitting president call the news media “the enemy of the American people”? That was no joke. That was serious. The amount of insults and threats we started to see, reporters kicked out of the White House press pool, there were some tangible things, but for the most part, it was a lot of talk, a lot of insults. It was a lot of delegitimizing talk directed at the press coming from the highest bully pulpit we have in our country.
Jump ahead to Trump 2.0 and we’re seeing that talk, which is still there of course, turn into real action. They have cut off funding for public broadcasting. They have shut down Voice of America. They have kicked major news organizations out of the Pentagon. They have taken away the right of the White House Correspondents’ Association to decide who is going to be in the White House press pool.
Those regulatory and structural attacks are pretty openly being deployed now, most recently in the case of Stephen Colbert’s show on CBS. Colbert told his viewers last week that not only had CBS bosses told him not to air an interview with Texas Democrat James Talarico, who’s seeking his party’s nomination to run against John Cornyn for the Senate, but Colbert also said network lawyers had told him not to talk about the fact that he had been given this “guidance.” This is thanks to the network’s pretextual-sounding claims about the equal time rule. Can you explain to us what the equal time rule actually is, how it has been operative for most of my career as a journalist, and what it’s being used to do now?
Sonja West: The equal time rule is a regulatory rule that comes from the Federal Communications Commission, dating back to the times of actual broadcast airwaves, and a concept that those broadcast airwaves belong to the people as a whole, and therefore there should be some interests the public might have in how they’re used. The idea was that if someone who has a broadcast license is going to give a certain amount of time to one side of a political debate, or to one political candidate, they should give equal time to the other. This often comes up as an issue when it comes to selling advertising time—they can’t just sell advertising time to one side without offering an equal opportunity to the other. Back in the 1980s with President Ronald Reagan, there was a big move away from this to suggest that this was too restricting, it was too much regulation, and the government really walked away from this and lightened the regulations. That led directly and explicitly to the rise of right-wing talk radio. No longer did those broadcast stations need to give equal time. Rush Limbaugh did not need to give equal time to another aside. So we walked away from this, particularly in anything that looks like news, and a pretty broad umbrella that included talk shows. Even though they’re comedy, they have serious elements.
Very recently, the Trump administration, which famously does not like late-night TV shows that overwhelmingly make jokes at the president’s expense, has started to say that this exception to the equal time rule should not apply to late-night talk shows. So we started to see some pressure coming from the FCC. It came to CBS, which, as we’ve seen, is increasingly willing to bow down to the pressures they’re getting from the Trump administration. This all led to, according to Colbert, him being explicitly told that he could not run that interview, or at least not without giving equal time.
RonNell Andersen Jones: And I think the story goes to illustrate a much wider point we’re all trying to come to grips with in the press freedom space, which is the range of federal regulatory pressures that are, or potentially can be, leveraged by the executive branch. This is true not just because this is an executive branch that has significantly greater incentive to do this sort of thing, or is willing to politicize agencies that were previously sheltered from that politicization. It’s also because we have this system where a lot of those regulatory pressures are bound up in the way that the media is built. Pressures that you might not even think of as being press freedom issues: Law fare avenues turn out to be mergers and acquisitions, immigration law, broadcast licensing rules, tax law … a whole slew of corporate pressures. We’ve seen settlements in cases that have been brought by the president against news outlets, or individual journalists on defamation claims, or on claims that are essentially defamation claims, but are dressed up as other kinds of claims like consumer fraud claims or election interference claims, but at their root are really focused on the president’s concerns about content that was unfavorable to him. That would be entirely unheard of before this administration. And they’re settling for millions of dollars. So we have media companies across the country that are now the primary funders of the Trump Presidential Library, for example. It isn’t because the law is not on their side; it’s because these other regulatory pressures exist in the background.
This feels not so much like the elimination of a free press, as the capture of it. The law is on the press’s side, but executive leverage and corporate structure—the sorts of things that have haunted press freedom and media studies scholars for a generation—the lack of public interest protection and hyper-commercialization, weak and vulnerable public media, and this reliance on market forces to deliver good investigative journalism in the public interest? All of that combines in a way that leaves a million touch points of vulnerability, and it feels at this moment like all of them are being targeted.
I want to just note that these are not purely Donald Trump problems. This was really fertile soil for him, or any autocrat, to exploit. This was well on its way to happening.
Sonja West: This isn’t just a Donald Trump story. Donald Trump walked into a situation that was already quite dire for the news media, and he is taking real advantage of that. We can’t tell this story without also talking about money and the economics of journalism. We had a complete breakdown of the pricing structure of the economic model that supported journalism for most of the 20th century. It’s hard to believe now, but Rupert Murdoch once referred to the ownership of his newspapers as owning “rivers of gold.” They were that profitable.
That made the news very powerful. They had money to do all the things we want the news to do, like hiring reporters and running international bureaus. It also meant they could fight lawsuits and that they had this power even over politicians because they were the medium by which politicians could get their message out. This was before Twitter, this was before they could just go on YouTube or Instagram with their own straight-to-the-people messages. You could live in a medium-sized town in America and you could have a newspaper delivered to your doorstep in the morning, and a completely different, competing newspaper delivered to your doorstep in the evening, with multiple local radio stations and everyone trying to cover the same news. All that has gone away. The internet destroyed the ad revenue model for newspapers and other media outlets, who quickly learned that subscriptions will not fill that void because people have come to a place, rightly or wrongly, where they feel entitled to having the news for free.
So what we have seen is a complete destruction of local media—it has vanished, and while we do have a few remaining strong national media outlets, it is even more imperative that these big, profitable media organizations go to court, fight the fights, and stand up to the administration to make sure that we have good, strong legal precedent, because those local, smaller, even regional news outlets need that. But they are failing to do that, they are folding, just because they want to take money and turn it into more money. That’s been very distressing. We did not expect it to happen this fast. Traditionally, the big national outlets fought those fights. There was a time when we had many Supreme Court cases because they would fight them all the way to the Supreme Court and they would throw whatever money they needed to throw at it.
What we have instead, when you take it as the big picture, is a very weak news media ecosystem, despite the fact that the New York Times might be making money. That is the space that Donald Trump jumped into. There was a time when perhaps the news media didn’t need legal protections that strongly. They had other levers of power they could pull, other ways that they could protect themselves and get their work done, even without necessarily always having the law behind them. That is gone now. People are looking for all of this legal precedent that we have, and learning that we have wonderful free speech legal protections that apply once a news organization chooses to broadcast or publish a story, but the rest of the unique work of the press, like news gathering and all the other stuff that goes in until you hit publish on that story, that part has very weak protections. A number of news organizations are looking around and suddenly realizing the footing of the law is not as strong as they thought it was, just at the time they need it the most.