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From the Executive Director’s Desk: The First Amendment, the Media, Truth, and Democracy in Danger in Trump’s Hands

By George Freeman

Happy Independence Day to all! This is my 4th of July column. Unfortunately, it can't be written in a celebratory style. To the contrary, our democracy and its founding document – the one signed 244 years ago this week, and the First Amendment adopted some 15 years later – are in serious peril. Our country's leader and our impotent, toadying leadership seem to have only personal interests at heart, not their constituents' nor the country's, and that basic fact undermines the whole concept of our democracy.

I should emphasize at the outset that this is not a political screed, but rather an attack on the President's outrageous, reckless and dangerous offensives against our vaunted freedoms of speech and press. As media lawyers, our careers have been entwined with two professions dedicated to facts: law, whose goal is justice based on the display of concrete evidence to reach the fairest conclusion; and journalism, whose mission is to fulfill the right of the people to know the accurate facts of what our government is up to. Yet this President, like a frustrated child arguing with his parents, will throw out words and arguments, totally disregarding their truth or falsehood, simply looking for the one which will serve his purposes. And he has admitted that his goal is to impugn the credibility of the press and the judiciary so that when they try to block his agenda or criticize or rule against him, such critiques will have no weight in the eyes of the public.

One has to go no further than the President's legal maneuvers in the last few months to see that he cares not a whit about the legal system or the First Amendment, but only his own self-interest, propelled by his egomania and drive for retribution against self-professed enemies. As has been documented previously in this space and elsewhere, he uses lawsuits (and, more often, threats thereof) not to achieve justice, but to squeeze his adversaries financially, to keep information antithetical to him from being expressed and to somehow get favorable PR, at least for his base.

For example, take his recent filing aimed at stopping the distribution of John Bolton's The Room Where It Happened, a book which criticizes mercilessly his ignorance, incompetence and self-interest in matters of foreign policy and national security. If you were a fly on the wall, listening in on a conversation between the President and his aides as to whether he should file suit, this is what I'd imagine you would hear:

Prez: We've gotta stop distribution of the Bolton book. That guy is just looking to make some dough from his supposed public service. Shocking. Plus, the book apparently says some bad things about me which won't be helpful in November.

Aide: Sir, you're the best president ever and everything in the country is going great right now, but I fear the swampy courts won't stop the book's distribution. We'll probably lose because the Obama judge will say the horse is out of the barn. You don't want to be a loser, do you?

Prez: You don't understand. Bolton is disloyal and just looking out for himself. And the book is full of lies and untruths that we can't permit to be spread.

Aide: But, Mr. President, by going to court, we're just going to give the book and these terrible charges more publicity. You surely don't want that.

Prez: You don't f___ get it. Bolton is a traitorous bastard. The book is all fake news. He and the publisher are enemies of the people. I'll put them in jail tomorrow. And you – you're fired!

And so it goes. Putting aside that the chances of a prior restraint being granted were de minimus, and that the court action only gave Bolton's charges more visibility, for a president to seek an injunction barring the distribution of a book clearly about matters of public interest is outrageously antithetical to the First Amendment and our constitutional values. That simple truth should not be lost amidst the day-to-day craziness coming out of the White House. We should be shouting from the rooftops every day, and educate the less constitutional-savvy of how opposed to traditional American values and both the spirit and letter of the Constitution the President's actions are.

Another litigation which is equally galling is the defamation lawsuit brought by Trump's reelection campaign organization against a small NBC affiliate in Wisconsin. The suit was brought not for a news item, but for an ad it broadcast by a group against Trump's reelection – the corest of core political speech.

(I don't here even include the three libel suits brought by his campaign against The New York Times, The Washington Post and CNN for pieces they published about Trump's contacts with Russia during the 2016 campaign, the subject of Congressional hearings and the Mueller Report. As unsupportable and unreasonable as they are – the entire actual malice case was based on these companies' longstanding "bias" against Trump – at least they are against large media organizations who can afford to defend themselves. These libel suits are unprecedented. No one has found a prior president filing a libel suit against the media about coverage of him.)

The ad in dispute is a collection of Trump's statements about the coronavirus, one of which includes the phrase "their new hoax." The basis of the libel case is that Trump meant that overreaction to coronavirus was a Democratic hoax, not that the virus itself was a hoax. It was on this slim reed that the President sued the television outlet, notwithstanding that it was unclear which meaning could be inferred from the airing of the ad, that either way it was so vague to certainly be opinion, not a clear fact, and that actual malice on the part of the station was nowhere to be found.

More egregious, this was a bully using the power of the presidency to scare, silence and punish a small media company – and all those similarly situated – for running an ad criticizing him about his position on a controversial matter costing thousands of American lives. It would be hard to find a better example for why a federal anti-SLAPP Act is needed.

Worse yet, the hypocrisy is overwhelming. The lawsuit comes from a man who does not distinguish between truth and falsity, who has used his presidential pulpit to utter over 19,000 lies or misleading statements in his three-and-a-half years as president. A man who has retweeted and given a vast audience to scores of messages which have been artificially manipulated or which contain knowing falsehoods. (This does not even include retweets which are simply inappropriate, such as his recent posts of angry "white power" chants in a Florida retirement community, or a white man and woman brandishing a rifle and a handgun at peaceful Black protesters.) Puffery is one thing, but it is totally indefensible for the President to utter one knowing falsehood after another, or to repeat others' messages he knows are false or intentionally misleading. To say Trump has no moral compass would be most euphemistic.

Other offenses against the First Amendment abound, even in the last 50 days. For example, Trump's Executive Order undercutting Section 230 was in direct retribution for Twitter's flagging his inaccurate tweet on mail-in voting leading to election fraud. I seem to remember a fundamental First Amendment value is that government is not supposed to punish or take action against a speaker because of the content of the speaker's message. I suppose Trump was out golfing the day of that lesson.

Likewise, the First Amendment protects the right of assembly and peaceful protest. Yet our President had federal law enforcement officials clear out a group of peaceful protesters opposite the White House with tear gas, batons, and low-flying military helicopters, so that he could strut to a church across the street for an insane photo op with a Bible he held upside down. Putting aside that he probably has read the Bible as often as Sarah Palin has read newspapers, and that he rarely has been seen at a church service, who does our circus barker-in-chief fool by this image of religious devotion? (Probably the same people who would go to an indoor Trump rally without a mask and with no social distancing, and agree, at the same time, to do so only if they sign a release immunizing the Trump campaign from liability if the rally-goer dies or gets the virus from attending such rally. What a deal!)

The President's most recent assault on the First Amendment came just a few weeks ago when he weighed in on flag burning. To me, this is the most fundamental of all First Amendment issues. As heinous as burning the American flag is, and as much as many Americans abhor such an act, it is most definitely protected by the Constitution. Indeed, allowing citizens to criticize our country – even in the starkest and most offensive ways – is exactly what the First Amendment, at its core, is all about. But our President, oblivious to all that, picked the week after protests all over the country to promote legislation that would put flag burners in jail for a year.

All of these examples – as well as his daily bombardment of the media as scum, enemies of the people and worse – just show the contempt he holds for the press and for our constitutional values. In his puerile mindset, they are no match for the importance of his ego and personal success. But, as I noted at the start, this is a danger not only for First Amendment values, but for the health of our democracy as a whole.

More dangerous still to our democratic ethos was his removal, aided by his sycophant AG William Barr, of Geoffrey Berman, U.S. Attorney for the SDNY. Reason for the ouster was solely the fact that the US Attorney had pursued legitimate cases against Trump's former lawyer Michael Cohen, his current attorney Rudy Giuliani and other allies of the President. Such action – l'etat c'est moi – is more akin to a totalitarian dictatorship than to a constitutional democracy. And unfortunately it, like the other scandalous behaviors cited above, tends to get lost among the outrageous actions emanating from the White House every day.

Please note that I take no position on substantive policy matters here. As the Executive Director of the MLRC I don't believe it appropriate to weigh in on immigration, healthcare or the host of other issues facing our country. What I can speak out on are values and issues which affect media lawyers – the First Amendment, truth and the health of our justice system and our democracy. And as to those, it's clear that we can't allow four more years of trampling on those values and institutions. We all ought to do what we can to make sure that change occurs in November.

The opinions expressed in this column are those of the author and not the MLRC. We welcome responses at This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; they may be printed in next month's MediaLawLetter.

 
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