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Trump鈥檚 FBI director pick Kash Patel:聽A clear and present danger to freedom of the press聽鈥 First Amendment News 449
Retribution is in the air. . . . [Kash Patel鈥檚] pledge to 鈥榞o out and find the conspirators, not just in government but in the media,鈥 is so overt that it demands to be taken seriously. 鈥 David Remnick
Former national security adviser John Bolton compared Kash Patel, President-elect Trump鈥檚 nominee to head the FBI, to one of the former Soviet Union鈥檚 most feared secret police chiefs, Lavrentiy Beria. 鈥 The Hill,
Full-bodied criticism of the press was part of the fabric of colonial America as the Federalists and Anti-Federalists battled it out. With the advent of President John Adams and his support of the Alien and Sedition Acts of 1798, however, criticism turned to censorship and prosecution. Merely recall the persecution of . To prevent just such forms of political retaliation, the First Amendment was crafted to erect a firewall between the government and its critics and thus render criticism immune from persecution.
Enter , President-elect Donald Trump鈥檚 pick to be the director of the FBI. Here is a man who is not shy when it comes to his intense views on the mainstream press. Consider, for example, the following statement from his 2023 book 鈥淕overnment Gangsters鈥:
鈥淸T]he media is not just one-sided, but liars. . . . What exactly is the 鈥楧eep State鈥 that I speak of? Some of the characters . . . are elected leaders. Others are yellow journalists in the media who serve as peddlers of propaganda and disinformation at the behest of the ruling elites.鈥
Then consider what Patel said last February when speaking before an energized audience at the :
鈥淸T]here is no deep state, there are no government gangsters without some of their corrupt actors in the media who continue to print the lies about Donald Trump鈥檚 success about our movement, and about our America First movement.鈥
As his incendiary momentum built up, and donning his 鈥淜$H鈥-branded scarf, the spirited Trump loyalist added:
鈥淲e [must] collectively join forces to take on the most powerful enemy that the United States has ever seen, and no it鈥檚 not Washington, D.C., it鈥檚 the mainstream media and these people out there in the fake news. That is our mission!鈥
They鈥檙e 鈥榙ead serious鈥
Earlier this week, New York Times reporters Glenn Thrush, Elizabeth Williamson, and Adam Goldman :
Mr. Patel鈥檚 maximum-volume threats to exact far-reaching revenge on Mr. Trump鈥檚 behalf have endeared him to his boss and Trump allies . . . Mr. Patel, who was working in the Pentagon during the 2020 election, has consistently promoted Mr. Trump鈥檚 false claims that President Biden stole the election.
He was so active in promoting falsehoods, and so wired in with the White House, that his superiors at the Defense Department took notice.
Gen. Mark A. Milley, then the chairman of the Joint Chiefs, summoned Mr. Patel and another Trump-allied aide to warn them against violating the sacrosanct separation of the military from politics,
Over the past four years, Mr. Patel has continued to echo Mr. Trump鈥檚 election falsehoods 鈥 and has gone so far as to suggest he would target journalists who dispelled the false claims if he ever returned to power.
Consider how Patel might respond to such statements in light of the following:
- Sarah Fortinsky, 鈥溾 The Hill (Dec. 5, 2023)
Steve Bannon and Kash Patel claimed that former President Trump is 鈥渄ead serious鈥 about exacting revenge on his political enemies if he wins a second term as president, and they warned members of the media to take the threats seriously, saying Tuesday, 鈥淲e鈥檙e going to come after you.鈥 In an episode of Bannon鈥檚 鈥淲ar Room鈥 podcast, Bannon and Patel, two of Trump鈥檚 close allies, pledged to prosecute members of the media who 鈥渓ied鈥 about the 2020 presidential election results 鈥 falsely suggesting Trump truly won.
鈥淲e will go out and find the conspirators 鈥 not just in government, but in the media,鈥 Patel told Bannon. 鈥淵es, we鈥檙e going to come after the people in the media who lied about American citizens, who helped Joe Biden rig presidential elections.鈥
鈥淲e鈥檙e going to come after you. Whether it鈥檚 criminally or civilly, we鈥檒l figure that out. But yeah, we鈥檙e putting you all on notice, and Steve, this is why they hate us. This is why we鈥檙e tyrannical. This is why we鈥檙e dictators,鈥 Patel said, suggesting those were terms used sometimes to describe them. 鈥淏ecause we鈥檙e actually going to use the Constitution to prosecute them for crimes they said we have always been guilty of but never have.鈥
By contrast, over at Fox News such attacks on the press and Trump鈥檚 critics were left out of the Kash Patel story and calls for 鈥渞eforms.鈥 See, for example, Stephanie Price, 鈥,鈥 Fox News (Dec. 2).
The fate of a federal shield law
- Jon Allsop, 鈥,鈥 Columbia Journalism Review (Dec. 2)
Trump himself has explicitly said that reporters who publish leaked information should go to jail; whoever eventually leads his FBI may not have written a sycophantic children鈥檚 book, but is likely to have to share this and related views, or at least pay lip service to them. As such, a perhaps more important fight than the one over Patel鈥檚 nomination concerns a piece of legislation that has already passed the House with bipartisan backing but has languished in the Senate: the PRESS Act, a so-called 鈥渟hield law鈥 that would curb the surveillance of journalists and protect them against efforts to make them identify their sources.
Shield laws exist at the state level, but a federal equivalent has never been passed 鈥 despite decades of trying, ever since the Hoover-era surveillance of members of the press was revealed.
Unsurprisingly, Trump opposed the latest bill鈥檚 passage before he takes office: last week he wrote on his Truth Social platform that 鈥淩EPUBLICANS MUST KILL THIS BILL!鈥 Journalists should advocate the opposite. Trump鈥檚 win and comments like Patel鈥檚 make doing so urgent. Even if Kamala Harris had won, the bill would be a good idea.
Critical Commentaries
- :
If Kash Patel becomes the director of the FBI, it will mark the apotheosis of the concerted attack on the independent media which has been brewing for more than 20 years. Vengeance and retribution will be the order of the day, and without the PRESS Act, coupled with the likely repeal of Merrick Garland鈥檚 DOJ鈥檚 regulations on obtaining information from the news media, we will be back in the maelstrom of the Nixon administration鈥檚 surveillance of journalists.
In addition to direct attacks on media entities and individual reporters who challenge the Trump administration, we can expect bogus, but rigorous, investigations and prosecutions not only of leakers, but of the recipients of those leaks.
This is not a time for the news media to be complacent, much less compliant. We must shout from the rooftops that this is not only unconstitutional, but undermines freedom for everyone. These attacks are not an 鈥渋nside baseball鈥 situation. All those in the media must communicate to the public that the survival of a free press is essential to everyone in our democracy.
Government punishment of disinformation is fundamentally antithetical to democracy. As the Supreme Court in United States v. Alvarez (2012), which struck down a federal law criminalizing certain false statements, 鈥淥ur constitutional tradition stands against the idea that we need Oceania鈥檚 Ministry of Truth.鈥
As current debates illustrate, one person鈥檚 cherished truth is another鈥檚 despised 鈥渇ake news.鈥 Speech that critics seek to suppress as disinformation almost never consists of objectively verifiable facts alone, but also involves subjective matters of interpretation and analysis. After all, speakers who intentionally or recklessly utter false statements of fact that directly cause specific harm may constitutionally be punished under existing laws, such as those that ban fraud, defamation, and perjury. In contrast, our legal system scrupulously avoids punishing statements that go beyond straightforward facts and incorporate matters of interpretation or opinion. As the Supreme Court in Gertz v. Robert Welch, Inc. (1974): 鈥淯nder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.鈥
While some may bristle at the notion that government is prohibited from silencing 鈥渇alse ideas,鈥 surely the alternative is far worse. If government were permitted to determine which ideas should be deemed 鈥渇alse鈥 and hence punishable, any ideas that depart from prevailing orthodoxy 鈥 including those critiquing government policy 鈥 would be jeopardized. Such a course could not be more inimical to the most fundamental precepts that undergird our democratic republic. As the Supreme Court eloquently declared in its landmark 1943 decision in West Virginia Board of Education v. Barnette: 鈥淚f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.鈥
Related
- Rachel Sully, 鈥,鈥 The Hill (Dec. 1)
- John Bowden, 鈥溾 The Independent (Dec. 1)
- Elaina Plott Calabro, 鈥,鈥 The Atlantic (Aug. 26)
Patel is author of a 鈥榖rilliant roadmap,鈥 says Trump
- 鈥溾 (Post Hill Press, 2023) (table of contents ) (documentary forthcoming)
鈥A brilliant roadmap highlighting every corrupt actor, to ultimately return our agencies and departments to work for the American People . . . we will use this blueprint to help us take back the White House and remove these Gangsters from all of Government!鈥 鈥 Donald J. Trump
The highest levels of government have been infiltrated by an anti-democratic Deep State that can be defeated by refocusing our national security mission and relentlessly defending the truth.
A sinister cabal of corrupt law enforcement personnel, intelligence agents, and military officials at the highest levels of government plotted to overthrow a president. Even after they failed, they continue to secretly pull the levers of power without any accountability to the American people. This isn鈥檛 the synopsis of a fictional spy thriller. This is what is actually happening in the United States government.
In Government Gangsters, Kash Patel 鈥 a former top official in the White House, the Department of Defense, the Intelligence Community, and the Department of Justice 鈥 pulls back the curtain on the Deep State, revealing the major players and tactics within the permanent government bureaucracy, which has spent decades stripping power away from the American people and their elected leaders. Based on his firsthand knowledge, Patel reveals how we can defeat the Deep State, reassert self-government, and restore our democracy.
- Kash Patel and Laura Vincent, 鈥,鈥 (Beacon of Freedom Publishing House, 2022) (Children鈥檚 book: 鈥(a fantastical retelling of Hillary鈥檚 horrible plot against Trump鈥))
Patel鈥檚 Credentials
- University of Richmond (BA)
- University College London (certificate in international law)
- Pace University (JD)
Patel鈥檚 Experience
- Senior aide to congressman Devin Nunes
- Federal public defender
- Federal prosecutor working on national security cases
- Legal liaison to the United States Armed Forces
- Served as a U.S. National Security Council official
- Senior advisor to the acting director of National Intelligence
- Chief of staff to the acting United States secretary of defense during the first Trump presidency
鈥楽o to Speak鈥 podcast: Wilson vs. FDR on free speech
- 鈥Wilson vs. FDR: Who was worse for free speech?鈥 FIRE(Nov. 25)
Woodrow Wilson or Franklin D. Roosevelt: which president was worse for free speech?
In August, FIREposted a , arguing that Woodrow Wilson may be America鈥檚 worst-ever president for free speech. Despite the growing recognition of Wilson鈥檚 censorship, there was a professor who wrote a recent book on FDR鈥檚 free speech record, arguing that FDR was worse.
Representing the Wilson side in our discussion is Christopher Cox, author of the new book, 鈥.鈥 Cox is a former member of the House of Representatives, where he served for 17 years, including as chair of the Homeland Security Committee. He is currently a senior scholar in residence at the University of California, Irvine.
Representing the FDR side is professor David T. Beito, a research fellow at the Independent Institute and professor emeritus at the University of Alabama. He is the author of a number of books, his latest being 鈥.鈥
More in the news
- Eugene Volokh, 鈥,鈥 The Volokh Conspiracy (Dec. 2)
- Eugene Volokh, 鈥,鈥 The Volokh Conspiracy (Nov. 30)
- Susanna Granieri, 鈥溾 First Amendment Watch (Nov. 27)
- 鈥,鈥 First Amendment Watch (Nov. 25)
- Sarah McLaughlin, 鈥Gov. Greg Abbott鈥檚 order 鈥榟ardening state government鈥 against China is dangerously hard to parse,鈥 FIRE(Nov. 22)
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
- (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
- (鈥淭he petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).鈥)
Review granted
Pending petitions
Petitions denied
Last scheduled FAN
FAN 448: 鈥D. John Sauer, the next Solicitor General 鈥 the government鈥檚 SCOTUS lawyer in First Amendment cases鈥
This article is part of First Amendment News, an editorially independent publication edited by Ronald K.L. Collins and hosted by FIREas part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article鈥檚 author(s) and may not reflect the opinions of FIREor Mr. Collins.
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