Donald Trump swore an oath to “preserve, protect and defend the Constitution of the United States.” He has forsaken his vow. Each legislator swore a similar oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” The Constitution is under attack by this president. Legislators of the President’s majority party have all but forsaken their vows, forsaken the Constitution, forsaken our democracy by failing to defend the Constitution against these attacks except in the form of rare, feeble admonitions.
This article is the first in a series titled Oaths Forsaken that will examine some of the ways in which the Constitution is under attack. This examination, conducted for my own edification, will be from a citizen’s point of view as I am neither a lawyer nor a historian. Each article will highlight a different Constitutional provision that is under assault. The provisions that will be examined are those articulated in the First Amendment, the first of the Constitution’s Bill of Rights.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
One could argue that the First Amendment to the Constitution is first for a reason. Indeed, the editorial “U.S. Institutions – Why is the First Amendment Important?” from the series on Views of the U.S. Government as Broadcast on The Voice of America makes that very assertion.
“Arguably, the First Amendment is … the most important to the maintenance of a democratic government.”
The First Amendment articulates five basic liberties – freedom of religion, speech, press, assembly, and petition. Most, if not all of these, are under attack by the current Administration.
Freedom of the Press
In this first article on Oaths Forsaken, attacks on the freedom of the press will be examined.
The first public printing of the US Constitution was in the September 17, 1787 edition of The Pennsylvania Packet and Daily Advertiser. (Image courtesy: The National Constitution Center)
The Value of a Free Press
The attacks on the freedom of the press will be addressed first because the free and independent press is essential to preserving our democracy. That is the reason the Nation’s “Founding Fathers” included it.
“Our liberty depends on the freedom of the press, and that cannot be limited without being lost.” – Thomas Jefferson, 28 January 1786
Its importance to our democracy has been articulated by many notable voices, including the sampling below.
Supreme Court Justice Hugo Black, in the per curiam opinion on the New York Times Co. v. United States (No. 1873) ruling related to government efforts to suppress publication of information found in the Pentagon Papers (30 June 1971).
“In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.”
Former President Barack Obama, addressing the White House Press Corps in his final news conference in the White House Briefing Room. (18 January 2017)
The free press “… is part of how this place, this country, this grand experiment in self-government has to work. It doesn’t work if we don’t have a well-informed citizenry. And you are the conduit through which they receive the information about what is taking place in the halls of power. So America needs you and our democracy needs you.”
Senator John McCain, responding to a question regarding President Trump’s assertion that the press was the “enemy of the people.” (18 February 2017)
“We need a free press. We must have it. It’s vital. If you want to preserve democracy as we know it, you have to have a free, and many times, adversarial press. Without it I’m afraid we would lose so much of our individual liberties over time. That’s how dictators get started.”
Representative Adam Schiff, co-chair of the Congressional Caucus for Freedom of the Press, in a CNN opinion piece on the free press, 13 November 2017.
“Every day, journalists risk their lives to bring news and information to people around the world. They are often the first to report at the front lines of conflict zones, the first to uncover corruption and the first to suffer the backlash when powerful forces would rather keep something hidden. They are dedicated to the truth and driven by the belief that an informed world is a safer and better world.”
“The authoritarian governments, terrorists and organized crime organizations that try to silence journalists have one thing in common — they are all threatened by transparency and the free flow of information.”
Christiane Amanpour, Chief International Correspondent for CNN, reflecting from a journalist’s perspective on the Remembrance Sunday services associated with Armistice Day in Great Britain.
“Our fallen are not remembered at these services, but without the truth we seek, there is no democracy, only dictatorship. Without the truth we bring there is no rule of law, only anarchy and destruction.”
Amanpour further reflects on the state of her profession.
“When journalists are not being killed in cold blood, they are staggering under the weight of censorship and spurious legal action.”
“And this assault on truth and facts has now traveled all the way to the land of the First Amendment, the constitutionally free press, the Fourth Estate.”
State of the Free Press around the World
In his opinion piece on the value of the free press referenced above, Rep. Adam Schiff highlighted the bipartisan Daniel Pearl Freedom of the Press Act, named for the Wall Street Journal reporter who was kidnapped and murdered while reporting on the US response to the September 11 attacks. This legislation, co-sponsored by then-congressman Mike Pence, requires the State Department to report on the state of the free press around the world in its annual human rights report. Schiff notes that “Sadly, those reports have captured a world in which basic press freedoms and the safety of journalists are increasingly under threat from authoritarian regimes and violent nonstate actors.” Schiff goes on to highlight examples of censorship, imprisonment, intimidation, and killings that authoritarian governments, drug cartels, and terrorist groups around the world use to suppress the free press.
The World Press Freedom Index, published every year by international free press advocacy group Reporters Without Borders (RSF), “…ranks 180 countries according to the level of freedom of the press.” It is a metric “…based on evaluation of pluralism, independence of the media, quality of legislative framework, and safety of journalists.” The individual rankings and more on the methodology are available on the RSF website. In the map below, countries are classified into six groups based on their ranking on the World Press Freedom Index.
This map indicates the status of the free press worldwide to be grim as the vast majority of countries have press freedom situations that are noticeably problematic or worse. The RSF analysis of their findings notes:
“The 2017 World Press Freedom Index compiled by Reporters Without Borders (RSF) reflects a world in which attacks on the media have become commonplace and strongmen are on the rise. We have reached the age of post-truth, propaganda, and suppression of freedoms – especially in democracies.”
The US press freedom situation is categorized as “Satisfactory” on the map. The US fell two places in the rankings since 2016 as its index score increased by 1.39. A smaller score represents greater press freedom. The US currently ranks 43rd of 180 countries evaluated.
The RSF’s detailed analysis of press freedom in the US points out:
“US press freedom, enshrined in the First Amendment to the 1787 constitution, has encountered several major obstacles over the past few years, most recently with the election of President Donald Trump. He has declared the press an “enemy of the American people” in a series of verbal attacks toward journalists, while attempting to block White House access to multiple media outlets in retaliation for critical reporting.”
Pressing the Press
President Trump is waging an all-out war on the free press to the point that prominent members of his own party have, on occasion, felt compelled to publicly admonish his behavior. Here is a sampling of his attacks on the free press and hence his attacks on the First Amendment, the Constitution, and US democracy.
Members of the press are confined to a pen at his campaign rallies. Check out the image of the penned in press in Slate reporter Seth Stevenson’s article “A Week on the Trail of the ‘Disgusting Reporters’ Covering Donald Trump.”
Here is a CNN 360° video of a Trump rally, showing the view from within the press pen.
Trump regularly mocks the press and calls them liars at his campaign rallies. Here he berates the “dishonest media.”
Trump mocks and slanders individual reporters at his campaign rallies. Here he mocks New York Times reporter Serge F. Kovaleski.
He calls out individual reporters for the contempt of his supporters.
His attacks of the press have elicited hatred toward the media in his followers. Here, his supporters chant “CNN sucks.”
Here a supporter at a Trump rally curses the media in the press pen.
A Reuters photographer captured an image of a rally-goer at a Minnesota rally wearing a shirt that promoted the lynching of reporters. You’ll have to search for that one yourself. I don’t feel comfortable putting a link to it on this site.
In February, just a month after Trump swore to “preserve, protect, and defend the Constitution,” news outlets whose coverage was deemed unfavorable were banned from certain press briefings by his administration. According to Vox:
“President Donald Trump’s press secretary, Sean Spicer, kept major media outlets, including the New York Times and CNN, out of the daily press briefing Friday, canceling it in favor of an off-camera media gaggle for handpicked media outlets and escalating the Trump administration’s fight with the press.”
“The White House picked which journalists could participate in the press briefing Friday. Reporters for CNN, the New York Times, Politico, BuzzFeed, and the majority of the foreign press were not among them.”
“The press pool, including NBC, ABC, CBS, and Fox News, were allowed in, as well as several smaller conservative media outlets, including the Washington Times, the One America News Network, and Breitbart, which was formerly run by White House senior strategist Steve Bannon. Time and the Associated Press boycotted the gaggle, according to reporting from CNN.”
Cameras were banned from White House Press Briefings for a time. In their article on the White House Press Briefing camera ban, CNN noted that access by the press (that is, the American people’s eyes, ears, voice) has been steadily curtailed.
“The White House has only held two on-camera briefings in the past two weeks.”
“Inch by inch by inch, the administration has been rolling back press access, which means less information for the public.”
“The State Department and the Pentagon have all but stopped holding on-camera briefings, too.”
During then-candidate Trump’s campaign, Time photographer Chris Morris, who was covering a Trump Rally, instinctively moved toward a group of Black Live Matter protesters being marched out of the arena in search of a better angle and bumped into a Secret Service agent when he stepped out of the press pen. Frustrated at being prevented from doing his job, the photographer yelled profanities at the agent. The agent’s violent take-down of the photographer seemed too extreme for the situation. The photographer was not a threat to the candidate, and could have been professionally asked to stand down. It must be difficult to maintain your professionalism, whether photographer or Secret Service agent, when subjected day after day to the antagonistic environment of Trump rally.
There have been arrests of reporters who were trying to do their jobs covering President Trump and his cabinet. In one case, reporter Dan Heyman was arrested and charged with “willful disruption of governmental processes” for persistently asking Health and Human Services Secretary Tom Price questions about the Affordable Care Act. Mr. Heyman was released from jail eight hours later. In speaking to CNN about his arrest, he noted that Secretary Price had not held any press conferences, and that had there been a press conference, he (the reporter) would have asked his one question and sat down. The reporter faced the prospect of six months in jail based on the charges. Four months after his arrest, those charges were dropped. According to his legal team, the State had determined that Mr. Heyman had not acted unlawfully.
Journalism advocacy groups expressed concerns with treatment of the press during the previous administrations. It is not clear to me that the two examples above reflect an escalation of arrests and physical attacks on the press by this administration. One thing that is clear, however, is that this administration is placing greater limits on media access than recent administrations and hence limiting its accountability to the American people who depend on the media to serve as their eyes, ears, and voice.
Tweeting the Press
Trump frequently tweets slanderous charges against the media. As of 27 November 2017 at 1515 UT, Trump had tweeted about “Fake news” 136 times since taking office on 20 January 2017 per the Trump Twitter Archive. This archive lists 298 anti-media tweets, the vast majority of which are targeted at news media personalities and organizations. Here is a small sampling.
Trump is clearly not acting to preserve, protect, or defend the First Amendment’s free press stipulation. No surprise that this tweet made headlines in the early days of Trump’s administration.
In the more recent tweet above, Trump lauds his favored news organization while slanderously denigrating another. Trump’s tweet above elicited numerous denunciations, including that of General Michael Hayden (former NSA and CIA director) below.
CNN refuted Trump’s attack with this powerful video showing examples of the important and dangerous work of its reporters in the service of citizens of countries around the world.
As President of the United States, Trump’s tweets have global reach and the potential for global impact. Indeed, the Guardian reports that Libyan broadcaster Libya 218 questioned the credibility of a recent, explosive CNN International report on the Libyan slave trade citing Trump’s tweet.
“Here the possibility arises that the channel has published the report of slavery in Libya to secure an as yet hidden political objective.”
During his campaign, Trump threatened to loosen the libel laws so that publications that did not provide him coverage he liked could be sued.
Now that Trump is in office, it seems that this administration is making policy changes that will tilt the balance of news coverage decidedly in favor of his administration’s party to the detriment of his political opponents’ party. Here are some policy changes that portend erosion of the free and independent press.
FCC Ruling Related to Broadcast Market Share
As reported by MotherJones, Federal Communications Commission (FCC) chairman Ajit Pai re-instituted the “UHF discount” loophole, with the effect that the Commission will no longer fully account for the true market size of stations broadcasting in the UHF portion of the spectrum when evaluating a company’s national reach. This change will allow Sinclair Broadcast Group to expand from 38% of the US market share to 72% of the US market share, or 2.2 million households.
Sinclair Broadcast Group is a large, conservative-leaning media group that owns dozens of local news stations across the country. Their local affiliates are required to interject “must-run” conservative segments produced by the group into their local newscast.
Last Week Tonight’s John Oliver ran an interesting primer on the looming expansion of the Sinclair Broadcast Group into the local news market.
Politico summarized the impact of the ruling:
“Sinclair Broadcast Group is expanding its conservative-leaning television empire into nearly three-quarters of American households — but its aggressive takeover of the airwaves wouldn’t have been possible without help from President Donald Trump’s chief at the Federal Communications Commission.”
FCC Poised to End Net Neutrality
Another major policy change that the FCC is poised to make is the dismantling of net neutrality laws. The Freedom of the Press Foundation views this as a major threat to the free and independent press. Per their article:
“Net neutrality is the principle that internet connections are not filtered, restricted, or manipulated based on their content. In the United States, that principle is enforced by a set of rules designed to ensure that neither internet service providers nor the government can tamper with the delivery speed or accessibility of certain data. ISPs must treat all internet traffic equally, and with these protections, the information that media organizations report and publish is not driven or interfered with by companies who sell internet access.”
“Without net neutrality, ISPs could form deals or partnerships with news organizations that could change what news coverage their users access. ISPs—some of whom own news outlets themselves—would have broad power to determine which stories internet users see, and could slow or block access to news coverage by competitor news outlets. Instead of choice between diverse coverage of news, internet users could be stifled from viewing reporting that their ISP deems unfavorable, whether for political or financial reasons.”
DOJ Files Suit to Block AT&T/Time-Warner Merger
The Department of Justice (DOJ) filed suit to block the merger of AT&T with Time Warner claiming that the deal violated anti-trust laws that would result in fewer offerings and higher prices for the public. There has been speculation that the suit is related to CNN, a Time Warner company and one of the President’s favorite press targets. Julia Ioffe, a journalist who writes about Russia for The Atlantic, is concerned about that as well, and argues that this action by the Trump administration “…should be a wake-up call for American journalists.” She travels to Russia for her work, and notes that “…the greatest danger facing journalists in Russia today…is not a violent death, but a quiet starvation.” She argues that Putin has found a better way of keeping the press in line than murder, and that is, economics. She gives an example of a media company (TVRain) in Russia that went from being “one of the most watched channels across the country to a marginal channel you could only watch online for a subscription fee” as a result of behind the scenes government intimidation of the company’s advertisers.
“There are too many other examples to enumerate, but the death of independent Russian media—and it is in its death throes—did not come about through mass murder. It was achieved by applying subtle political pressure on large businesses whose media properties, or the advertisements they placed in the media, were just a small, dispensable part—much like CNN is a small, dispensable part of Time Warner.”
She warns about the prospect of the same fate for the free and independent press here in the United States.
“Donald Trump is openly hostile to the media and now has more tools at his disposal than the mere wealth he wielded as a private businessman: He ultimately controls the Justice Department. He’s got a chilling precedent to follow and the resources of the federal government with which to follow it, if the Justice Department and the courts let him.”
Are there any checks on power left in the US government? Is our country’s free and independent press doomed to the same fate as Russia’s?
The Search for Truth
The purpose of the free, independence press is to uncover and report the truth. Thus, the Trump administration’s constant lying is an affront to the very mission of the free, independent press.
The Washington Post tracks Trump’s lies and provides a searchable database of them. According to the Washington Post, Trump had “made 1628 false and misleading claims over 298 days, for an average of 5.5 lies per day” as of 14 November 2017.
Masha Gessen, a Russian-American author, journalist, and activist who fled Putin’s Russia in 2013, notes that like Putin, Trump “…uses language to assert his power over reality. What he is saying is ‘I claim the right to say whatever the hell I please and what are you going to do about it?’”
Absolutely nothing this administration says can be trusted. Citizens are being prodded by this administration and its pundits into distrusting the media, the government, and each other. I fear a dark, paranoid, frightening future lies ahead. Like General Hayden, I’m “frightened” for my country.
Resources: Advocating for a Free Press
Reporters without Borders, whose World Press Freedom Index was described above, is one of a number of organizations that track the state of the free press around the world and that advocate on behalf of the free press. Others include the Committee to Protect Journalists, the Freedom of the Press Foundation, and the US Press Freedom Tracker. Mission statements for these groups, gleaned from their sites, are provided below along with links to their sites.
“Freedom of information is fundamental in any democracy, but nearly half of the world’s population has no access to freely-reported news and information.”
“Every day, RSF issues press releases and reports in French, English, Spanish, Arabic, and Farsi (and often in other languages such as Chinese, Portuguese and Russian) about the state of freedom of information throughout the world and how it is being violated. Its statements in the international media increase public awareness and influence leaders as regards both individual cases and general issues.”
“The Committee to Protect Journalists is an independent, nonprofit organization that promotes press freedom worldwide. We defend the right of journalists to report the news without fear of reprisal.”
“Freedom of the Press Foundation protects and defends adversarial journalism in the 21st century. We use crowdfunding, digital security, and internet advocacy to support journalists and whistleblowers worldwide.”
“Journalists in the United States face hostility from local and federal governments, along with a number of legal threats to themselves and their sources. This nonpartisan website aims to be the first to provide reliable, easy-to-access information on the number of press freedom violations in the United States—from journalists facing charges to reporters stopped at the U.S. border or asked to hand over their electronics.”