Academic journal article Missouri Law Review

Presidential Attacks on the Press

Academic journal article Missouri Law Review

Presidential Attacks on the Press

Article excerpt

INTRODUCTION

Americans are becoming numb to President Donald Trump's attacks on the press. Time and again, the plot unfolds the same way--the press publishes unfavorable coverage of Trump, and he responds with insults. He calls journalists "troublemakers," (1) "unfair," (2) "scum," (3) "disgusting," (4) "sleaz[y]," (5) "slime," (6) "phony," (7) "crooked," (8) "biased," (9) "garbage," (10) "crazy," (11) "sick," (12) and "among the most dishonest human beings on earth." (13) Sometimes he maligns their patriotism, suggesting that they are "enemies of the American people" (14) who are "distorting democracy in our country" (15) while "[t]rying to take away our history and our heritage." (16)

Trump's habit of hurling invectives at the press is disturbing. It undermines the work of the press and breaks long-standing norms that presidents show respect for the role of the Fourth Estate. (17) But insults alone rarely raise First Amendment issues. Presidents have long used the bully pulpit to respond to or criticize news reports. (18) Even Trump's near daily verbal assaults on reporters and news organizations can be considered part of our country's "uninhibited, robust, and wide-open" (19) marketplace of ideas. Presidents have opinions too, and journalists should be able to handle their rants.

Yet there are the times when Trump's lashing out at the press goes beyond mere name-calling. He instead uses the power of his presidency in an attempt to punish or silence press organizations that displease him. in these instances, Trump is unsheathing an entirely different kind of weapon. when a president crosses the line from insulting the press to turning the wheels of government as a means to retaliate against news organizations for their reporting, the potential First Amendment violations become very real.

The goals of this short Article are modest. it seeks simply to differentiate the various ways Trump has attacked the press, to emphasize that we should not view them all through the same constitutional lens, and to bring attention to the most serious type of offense. in Part i, i divide the kinds of attacks into three categories of increasing seriousness. i discuss a number of examples in which Trump has used insults, generalized threats, denials of benefits, and government power to punish the press for coverage he dislikes. Then, in Part ii, i analyze each type of attack under current First Amendment law. Unsurprisingly, it is Trump's attempts to employ the power of the federal government to retaliate against the press that raise the most troubling constitutional concerns.

Lobbing insults at reporters is one thing, and the instinct to brush this practice aside is understandable. But when the president tries to use the power of the government to silence his critics, the threat to press freedom is far more dangerous.

I. TRUMP'S ATTACKS ON THE PRESS

It is not a secret that President Trump is engaged in "a running war with the media." (20) From the beginning of his candidacy he has expressed (21)--and encouraged (22)--hostility toward the press. By the end of his first year in office, he had posted more than a thousand criticisms of the press on Twitter alone. (23) Not all of his attacks on the press are the same, however, and it is important that we recognize key differences. In this Part, I divide the various attacks into three categories, starting with the least concerning and ending with the most.

A. Insults and Name-Calling

In his many complaints about the press, Trump has targeted particular news organizations, individual reporters, and the profession as a whole. (24) While his grievances are many and varied, common themes among them do arise. He accuses reporters of being biased. (25) He says the press is inaccurate, (26) often purposely so. (27) He claims journalists are trying to hurt him and help his opponent. (28) And he often likes to insult news organizations by claiming they are "failing," (29) "ratings challenged," (30) or soon to be "out of business. …

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