Sonja R. West is the Otis Brumby Distinguished Professor in First Amendment Law at the University of Georgia School of Law. Her post is shared by the Law School and the Grady College of Journalism and Mass Communication. Professor West specializes in constitutional law, media law and the U.S. Supreme Court. Two of her more recent publications are: “Suing The President For First Amendment Violations,” 71 Okla. L. Rev. 321 (2018) and “Favoring the Press,” 106 Calif L. Rev. 91 (2018).
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Professor Sonja R. West
President Trump is waging a self-declared “running war” with the press, prompting an abundance of analysis from journalists and scholars alike. Faced with attacks of being “fake news” and “the enemy of the people,” the news media are sounding the alarms about troubling issues like decaying norms, dwindling public trust and even incitements to violence.
Thanks to his administration’s open hostility toward the press, however, Trump is also exposing a very different, and rarely discussed, vulnerability of the modern news media: The United States Supreme Court’s failure to adequately protect the press under the First Amendment.
When it comes to constitutional rights and protections for the press, the Supreme Court has long adopted a two-sided approach. On the one hand, the Court routinely speaks—often in quite eloquent terms—about the vital role the press plays in our democracy. Yet, on the other hand, it consistently refuses to recognize any unique First Amendment safeguards that would support the press in this work.
Once they publish or broadcast their stories, of course, members of the press enjoy the same robust rights as everyone else under the Speech Clause. But the First Amendment also secures separate protection for the freedom of the press. This express guarantee raises the question of whether issues affecting the press should ever merit special constitutional consideration. The Court has been steadfast in its insistence that the answer is no.
In several articles, I have criticized the Court’s First Amendment jurisprudence for focusing all its attention on the Speech Clause, while virtually ignoring the Press Clause. This failure by the Court to recognize the unique constitutional status of the press flies in the face of the document’s text and history. In fact, the historical evidence shows that the founding generation believed a free press to be of heightened constitutional importance—surpassing even that of individual speech rights.
The framers particularly valued the structural role that the press plays in our democracy. A free press, they contended, serves as a check on government tyranny and informs the public of newsworthy matters. While the Court has acknowledged these important press functions in passing, it has nonetheless declined to identify any concrete rights that would support this work. It, instead, has decided to lump all speakers together and protect them almost entirely through the Speech Clause. This has left the press without key protections, particularly in the area of newsgathering. The Court’s all-speakers-equal approach not only fails to provide the press with distinct constitutional rights, but, as I argue in my most recent piece, it potentially threatens even legislatively granted press protections. (Oh, and since you asked, yes, it is possible for the Court to define the press.)
This brings us to President Trump. While the Court’s abandonment of the Press Clause long predates the Trump Administration, recent events are shining a spotlight on the consequences of the Court’s decisions. Among the most concerning issues are rights of access, legal defenses against government searches and subpoenas, and protection from criminal prosecution.
The Court loves to extol the vital role of the press as government watchdog. Members of the press, the Court tells us, serve as “surrogates for” and “the eyes and ears of” a public that has “limited time and resources with which to observe at first hand the operations of [its] government.” In order to inform the public about “what their government is up to,” the press often needs access to government places or information. Yet the Court has declared that the press has no right to “special access to information not shared by members of the public generally.”
President Trump (credit: NBC News)
Limitations on press access, of course, greatly hinder the ability of journalists to effectively monitor government actions. And while it can be difficult to assess the full effect of these restrictions, there are times when it is clear that the public is being kept in the dark about serious matters. We have seen this recently in the controversy surrounding the detention of migrant families. The Trump Administration has strictly limited access to these detention centers. Thanks to the Court, of course, the news media has no claim to a constitutional right of access. This leaves the American public to debate these policies without any images from independent photojournalists, forced instead to rely on only government-supplied photos. Similarly, it has been unclear whether journalists have any constitutional arguments when they have been selectively banned from the president’s meetings with foreign leaders, White House press briefings and events, and a national summit involving the Environmental Protection Agency. One reporter was even physically pinned against the wall after trying to ask a federal agency official a question. The problem here is evident, because if the press can’t ask questions then the public doesn’t get answers.
Another crucial way that members of the press are different from other types of speakers is their increased interest in safeguarding their newsgathering processes and confidential sources. The Court has acknowledged the issue, admitting that “without some protection for seeking out the news, freedom of the press could be eviscerated.” But the Court, nonetheless, has refused to recognize First Amendment defenses for reporters from government searches and subpoenas.
The dangers of the Court’s failure to protect journalists from government surveillance began coming to light even before Trump took office. The news media strongly criticized the Obama Administration for seizing the phone records of twenty Associated Press reporters; monitoring the activities, phone calls and personal emails of Fox News’s James Rosen; and waging a years-long campaign to force a Pulitzer Prize winning New York Timesreporter to reveal his confidential source. In response to pushback from the press, Obama’s Department of Justice ultimately strengthened its internal guidelines regarding the news media.
The problem, however, is that self-imposed guidelines do not have the strength of constitutional (or even statutory) protections, and they were quickly called into question by Trump’s Attorney General, Jeff Sessions. It was thus not a surprise when, earlier this summer, the news broke that Trump’s Department of Justice had seized a year’s worth of New York Times reporter Ali Watkins’ emails and phone records. And, as Trevor Timm wrote in the Columbia Journalism Review, this is likely just the beginning, because “[w]ith three other, unidentified reporters mentioned in court documents related to the leak case Watkins is ensnared in, and dozens of other similar investigations going on as we speak, it’s anyone’s guess how many journalists the Trump administration is currently spying on.”
Finally, and most seriously, members of the press are unique in the threat they face of criminal prosecution. The very nature of newsgathering often means that journalists are on the frontlines of volatile situations. Likewise, their role as “a powerful antidote to any abuses of power by government officials” frequently makes them the special target of government ire. The Court has acknowledged this heightened risk, noting that the use of prosecutions for criminal libel was a key part of the “history of conflict between the Crown and the press.” Yet the Court’s one-size-fits-all view of the First Amendment suggests that journalists who are arrested while engaged in an act of newsgathering or reporting are, as a matter of constitutional law, viewed no differently than any other speaker. Such an approach belies the history of press liberty in our country and leaves the press particularly vulnerable to government abuse.
We can again thank the Obama Administration for setting a dangerous example in this area. In 2010, it took the unprecedented step of naming Fox News’s Rosen as “an aider/abettor and/or co-conspirator” under the Espionage Act for his newsgathering efforts to obtain classified information.
There has been no criminal prosecution against a reporter during Trump’s presidency. Yet. But shortly after his inauguration, he did tell then-FBI Director James Comey to consider putting journalists in prison for publishing classified information. There was also a reporter arrested and criminally charged for shouting questions at a member of Trump’s cabinet. Another journalist was arrested while covering an immigration protest then detained by ICE and threatened with deportation. And nine journalists were arrested while covering Trump’s inauguration, including a photojournalist who was charged with eight federal felonies and faced up to 60 years in prison. In all, the Committee to Protect Journalists has identified 40 instances of members of the press being arrested or detained in the United States since the beginning of 2017.
The Constitution singles out the press for protection because of its unique roles as government watchdog and public informant. The Court should have given this direct constitutional dictate its due long ago, and its failure to do so has always come with risks. But thanks to President Trump’s ongoing enmity toward the press, we are now seeing the consequences far too clearly. It is time for the Court to embrace what the framers articulated so long ago—we must protect our press, because that is how we protect ourselves.