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FAN 201.2 Robert Corn-Revere: "Can the President Treat the Press as the Enemy of the People?"

On October 16, 2018, , an association of writers and other literary and media professionals, filed suit against President Donald Trump. The suit challenged his persistent use of threats and retaliatory acts against the press as a violation of the First Amendment. An amended complaint in that action was filed on February 6, 2019, in the U.S. District Court for the Southern District of New York.

In the essay below, Robert Corn-Revere, a partner and Davis Wright Tremaine LLP, outlines a history of presidential and other official actions that were hostile to First Amendment freedoms.  In a follow-up essay (Part II), he sets forth the First Amendment case against President Trump鈥檚 threats and retaliatory acts. Mr. Corn-Revere and others at DWT recently joined lawyers from . and the  of the  in representing PEN America in this case.

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Can the President Treat the Press as the Enemy of the People?

by

From the earliest days of the Republic, our institutions have struggled to define the limits of executive power within a system based on separation of powers and respect for individual rights.  One of the first tests of the system arose from attempts to shield the John Adams Administration from sharp criticism by a hostile press. The made it a crime to 鈥渨rite, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government鈥 with the intent to defame Congress or the President.

The Sedition Act 鈥渨as less a piece of legislation than an act of vengeance by federalist lawmakers who decided to strike back at the republican newspapers that they felt had been demonizing their intentions and slandering their character for far too long.鈥 (source: ) At least a dozen prosecutions were instituted against editors of newspapers in major cities like Philadelphia, New York, and Boston, as well as in smaller towns in Connecticut and Vermont.  As a result, five Republican papers were shuttered or ceased publication for at least some period during this time. (sources: and ).

Many of the Sedition Act prosecutions targeted what an irresponsible politician today might call 鈥渇ake news.鈥 The law authorized the prosecution of 鈥渇alse state颅ments,鈥 and, as Representative  of Connecticut explained in advocating its passage, the Act was necessary to punish publication of 鈥渢he most shameless falsehoods against the Representatives of the people of all denominations.鈥(source: ) The experience prompted certain Framers, including James Madison and Thomas Jefferson, to articulate a broad theory of freedom of expression to explain the meaning of the First Amendment. (source: ) Growing revulsion with what many perceived as a repudiation of the Constitution contributed to the Federalist鈥檚 defeat in the election of 1800. (source: )

The Sedition Act expired by its own terms on the last day of the Adams Administration and was never tested in court, but the consensus of history is that it was fundamentally at odds with the First Amendment.  As newly elected President Thomas Jefferson put it as he pardoned and remitted the fines of those convicted under the law, 鈥淚 considered . . . that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.鈥 (source: )  This experience with the federal government鈥檚 initial effort to criminalize false speech 鈥渇irst crystallized a national awareness of the central meaning of the First Amendment.鈥 (source: here)

The Supreme Court weighs in

The Supreme Court first addressed constitutional limits on the government鈥檚 authority to suppress criticism of public officials in Near v. Minnesota (1931). The Court held that the First Amendment barred a state law that authorized suppression of malicious, scandalous and defamatory newspapers, magazines or other periodicals. As Justice Pierce Butler described it in his dissent, the case involved an injunction barring the publication of a 鈥渟candal sheet鈥 called The Saturday Press, in which 鈥淸m]any of the statements are so highly improbable as to compel a finding that they are false,鈥 and 鈥淸i]n every edition slanderous and defamatory matter predominates to the practical exclusion of all else.鈥 Among other things, Near set a constitutional baseline that the government has no authority to define what it thinks is 鈥渇ake news鈥 and use the machinery of government to suppress it.

After the courts began to weigh in and articulate First Amendment doctrine, officials often sought to evade constitutional review by using informal tools or by using neutral laws in a retaliatory way. Governor of Louisiana punished big city newspapers for their hostile coverage while at the same time attempted to avoid judicial scrutiny by having the legislature enact a seemingly neutral tax targeting only those publications with a weekly circulation exceeding 20,000 copies.

The Supreme Court struck down the measure in 1936 as a 鈥渢ax on knowledge鈥 that has 鈥渁 long history of hostile misuse against the freedom of the press.鈥 Decades later the Court discussed the underlying machinations that led to the tax. According to Justice Sandra Day O鈥機onnor鈥檚 opinion for the Court in (1983), Governor Long believed that all but one of the large newspapers subject to the tax had 鈥済anged up鈥 on him, so he called on the legislature to punish the 鈥渓ying newspapers鈥 for conducting 鈥渁 vicious campaign鈥 and to impose 鈥渁 tax on lying.鈥 This explains why the Court in Grosjean v. American Press Co (1936) invalidated Long鈥檚 scheme as 鈥渁 deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled.鈥

Presidents and their 鈥渟urreptitious methods鈥

Presidents from across the political spectrum have used surreptitious methods to punish or discipline members of the press they believed treated them unfairly. Franklin D. Roosevelt would frequently have the FBI wiretap reporters from what he considered to be 鈥渦nfriendly鈥 newspapers. When Roosevelt was angered by a columnist for the New York Daily News who criticized his foreign policy, the President had the FBI investigate the reporter who was then denied press credentials for the War Department. (See, e.g., Burton W. Folsom and Anita Folsom,  214-219 (2011)).

Roosevelt was particularly hostile to the Chicago Tribune for its war coverage and used government power behind the scenes to harass the paper. The newspaper company was subjected to an IRS audit, as was its publisher, . Roosevelt also directed Treasury Secretary . to conduct a tax audit of the New York Times when he was displeased with some of the paper鈥檚 columnists. (Source: ) Roosevelt鈥檚 son, Elliott, would later write that his father 鈥渕ay have been the originator of the concept of employing the IRS as a weapon of political retribution.鈥(Source:)

Subsequent presidents also have been known to use administrative agencies to silence critics. , John F. Kennedy approved a plan to coordinate FCC Fairness Doctrine complaints to target radio stations that aired right-wing editorials and to focus on small market stations that could not afford to respond. Supported by a secret fund handled by the Democratic National Committee, a monitoring program was established to demand response time for any commentary considered to be 鈥渋rrationally hostile to the President and his programs.鈥 The avowed purpose of the program was to 鈥渉arass right-wing broadcasters and hope the challenges would be so costly to them that they would be inhibited and decide it was too costly to continue.鈥 The program, which continued under the Johnson Administration, was considered a success, although some participants looking back through the lens of Watergate lamented 鈥淸i]f we did in 1974 what we did in 1964, we鈥檇 be answering questions before some congressional committee.鈥 (Source: )

Nixon鈥檚 antagonism 

Richard Nixon had no such qualms. His Administration was particularly antagonistic to the press and utilized a variety of tools to intimidate and punish disfavored reporters and critical news organizations. He compiled an 鈥渆nemies list,鈥 and subjected those on it to illegal wiretaps, tax audits, and office searches. (source: ) The White House tapes recorded Nixon threatening to take action against broadcast stations owned by the Washington Post in retaliation for its coverage of the Watergate scandal, and he arranged for political allies to challenge license renewals of 鈥渦nfriendly鈥 stations. (Judge David L. Bazelon, , Duke L. J.213, 214, 216 & n.9, 239 (1975)).

Internal White House memoranda written by Nixon鈥檚 Special Counsel described meetings with the chief executives of the three major broadcast networks for the purpose of threatening enforcement of FCC regulations so as to achieve 鈥渁n inhibiting impact on the networks and their professed concern with achieving balance.鈥 (Source: )  Colson set forth a plan to further this objective that included: (1) establishing 鈥渁n official monitoring system through the FCC鈥 and to 鈥渕ake official complaints鈥 to the Commission; (2) using the Justice Department鈥檚 antitrust division 鈥渢o investigate various media relating to anti-trust violations;鈥 and (3) using 鈥渢he Internal Revenue Service as a method to look into the various organizations we are most concerned about.鈥 (source: ) Colson鈥檚 memos came to light as a result of the Watergate investigation. (Final Report, Senate Select Committee on Presidential Campaign Activities, S. Rep. No. 981, 93rd Cong., 2d Sess. 149 (1974)).

The current occupant of the White House has taken hostility to the press to an entirely new level.  The Trump Administration has cribbed from, and put into practice, virtually all of the worst lessons from this history of constitutional abuse.

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Forthcoming: Part II, 鈥The Retaliator in Chief: The Case Against Donald J. Trump

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