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

On October 16, 2018, PEN America, 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’s threats and retaliatory acts. Mr. Corn-Revere and others at DWT recently joined lawyers from The Protect Democracy Project, Inc. and the Media Freedom and Information Access Clinic of the Floyd Abrams Institute for Freedom of Expression in representing PEN America in this case.

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

by Robert Corn-Revere

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 Sedition Act of 1798 made it a crime to “write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government” with the intent to defame Congress or the President.

The Sedition Act “was 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.” (source: here) 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: here and here).

Many of the Sedition Act prosecutions targeted what an irresponsible politician today might call “fake news.” The law authorized the prosecution of “false state­ments,” and, as Representative John Allen of Connecticut explained in advocating its passage, the Act was necessary to punish publication of “the most shameless falsehoods against the Representatives of the people of all denominations.”(source: here) 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: here) Growing revulsion with what many perceived as a repudiation of the Constitution contributed to the Federalist’s defeat in the election of 1800. (source: here)

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, “I 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.” (source: here)  This experience with the federal government’s initial effort to criminalize false speech “first crystallized a national awareness of the central meaning of the First Amendment.” (source: here)

The Supreme Court weighs in

The Supreme Court first addressed constitutional limits on the government’s 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 “scandal sheet” called The Saturday Press, in which “[m]any of the statements are so highly improbable as to compel a finding that they are false,” and “[i]n every edition slanderous and defamatory matter predominates to the practical exclusion of all else.” Among other things, Near set a constitutional baseline that the government has no authority to define what it thinks is “fake news” 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 Huey Long 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 “tax on knowledge” that has “a long history of hostile misuse against the freedom of the press.” Decades later the Court discussed the underlying machinations that led to the tax. According to Justice Sandra Day O’Connor’s opinion for the Court in Minneapolis Star & Tribune v. Minnesota Comm’r of Revenue (1983), Governor Long believed that all but one of the large newspapers subject to the tax had “ganged up” on him, so he called on the legislature to punish the “lying newspapers” for conducting “a vicious campaign” and to impose “a tax on lying.” This explains why the Court in Grosjean v. American Press Co (1936) invalidated Long’s scheme as “a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled.”

Presidents and their “surreptitious methods”

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 “unfriendly” 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, FDR Goes to War: How Expanded Executive Power, Spiraling National Debt, and Restricted Civil Liberties Shaped Wartime America 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, Robert McCormick. Roosevelt also directed Treasury Secretary Henry Morgenthau, Jr. to conduct a tax audit of the New York Times when he was displeased with some of the paper’s columnists. (Source: here) Roosevelt’s son, Elliott, would later write that his father “may have been the originator of the concept of employing the IRS as a weapon of political retribution.”(Source:here)

Subsequent presidents also have been known to use administrative agencies to silence critics. According to Fred Friendly, 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 “irrationally hostile to the President and his programs.” The avowed purpose of the program was to “harass 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.” The program, which continued under the Johnson Administration, was considered a success, although some participants looking back through the lens of Watergate lamented “[i]f we did in 1974 what we did in 1964, we’d be answering questions before some congressional committee.” (Source: here)

Nixon’s 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 “enemies list,” and subjected those on it to illegal wiretaps, tax audits, and office searches. (source: here) 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 “unfriendly” stations. (Judge David L. Bazelon, FCC Regulation of the Telecommunications Press, Duke L. J.213, 214, 216 & n.9, 239 (1975)).

Internal White House memoranda written by Nixon’s Special Counsel Charles Colson 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 “an inhibiting impact on the networks and their professed concern with achieving balance.” (Source: here)  Colson set forth a plan to further this objective that included: (1) establishing “an official monitoring system through the FCC” and to “make official complaints” to the Commission; (2) using the Justice Department’s antitrust division “to investigate various media relating to anti-trust violations;” and (3) using “the Internal Revenue Service as a method to look into the various organizations we are most concerned about.” (source: here) Colson’s 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, “The Retaliator in Chief: The Case Against Donald J. Trump”