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.
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.
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." (31)
At rallies held both before and after he became president, Trump has spoken angrily about the press. in a typical speech, he directs the crowd's attention to the group of reporters (who have been confined to a "pen") and proceeds to insult and criticize them. (32) He regularly, for example, amps up his audience into chants of "CNN Sucks!" (33) At one rally, as reported by The New York Times, "members of the audience shouted epithets at reporters, some demanding that they stop tormenting the president," (34) and a reporter for USA Today tweeted that a "man with a little boy on his shoulders is screaming 'rat!' at reporters in the press risers." (35)
Others who work closely with Trump have amplified this anti-press stance. Then-White House Chief Strategist Steve Bannon labeled the press as the "opposition party" and said it should "keep its mouth shut and just listen for a while." (36) Trump's former chief of staff, Reince Priebus, said the White House looked into the possibility of making it easier to sue news organizations because "newspapers and news agencies need to be more responsible with how they report the news." (37) When Trump was presented with a ceremonial sword at a Coast Guard Academy graduation ceremony, thenSecretary of Homeland Security John Kelly suggested that the President "use it on the press." (38)
Generalized Threats and Denials of Benefits
Other statements and actions by President Trump go beyond name-calling and involve more concrete actions against the press. These include more generalized threats against the press and denials of certain benefits, such as access, to disfavored journalists.
On a number of occasions, Trump's campaign or administration has denied (or threatened to deny) access to journalists because of critical reporting. Certain reporters, for example, were forcibly barred from an administrative agency meeting. (39) Reporters who wrote negative stories have been excluded from press briefings. (40) one credentialed White House reporter claims she was barred from attending an open press event with Trump as punishment for asking him questions that were deemed "inappropriate." (41) During his campaign, he blacklisted about a dozen news organizations (including The Washington Post (42)) from covering his campaign events and riding on his press plane because he deemed their coverage of him to be unfair. (43) The most striking instance of access denial occurred in November of 2018 when the White House revoked the press pass of CNN reporter Jim Acosta following a heated exchange between him and President Trump. (44) The white House only restored Acosta's credentials after the network sued and won a temporary restraining order. (45)
In other instances, Trump has made more indirect and generalized threats against members of the press. He has tried to get reporters fired, (46) has called for boycotts of news organizations, (47) has urged others to sue media organizations, (48) and has himself sued or threatened to sue them (49)--all because of their negative reporting about him. After the website BuzzFeed published an unverified dossier containing negative allegations about him, for example, he made the menacing-sounding threat that it would "suffer the consequences" for the publication. (50) He also once vaguely suggested that news organizations should lose their press credentials if they publish "fake news" (a phrase, he explained, that refers to negative stories about him). (51)
Trump has even called for the weakening of core First Amendment protections for the press by repeatedly saying that his administration would "open up" libel laws to make it easier for him to sue news organizations (specifically mentioning The New York Times and The Washington Post) that write "hit pieces" about him. (52) In his words, "our current libel laws are a sham and a disgrace and do not represent American values or American fairness." (53)
Other reports have suggested even more ominous threats against the press. According to former FBI director James Comey, for example, Trump suggested "putting reporters in jail" to send a message about publishing leaked classified information because "they spend a couple days in jail, make a new friend, and they are ready to talk." (54) The Department of Homeland Security also raised concerns among journalists when it announced a plan to "compile a database of journalists, editors, foreign correspondents, and bloggers to identify top 'media influencers'" and monitor their public activities. (55) The types of attacks on the press in this second category go beyond mere insults and name-calling and are clearly more serious. But these attacks also contain just enough ambiguity to make the actual risk to press freedom uncertain. Reporters, for example, are actively kept out of briefings, which is problematic. Yet the attacks also tend to violate norms of presidential behavior more so than legal or constitutional rules. Similarly, ominous threats of potential consequences or even imprisonment are certainly disconcerting, but the threats are also often vague enough to be arguably hyperbolic or simply unrealistic.
Using Government Power
The last category of attacks on the press is the most troubling. In these cases, President Trump has attempted to employ the federal government's power to punish specific members of the press in retaliation for their reporting. If the other examples of hostility toward the press skirt the constitutional line, the instances that fall into this category arguably step right over it.
One of the most public examples of Trump threatening to use government power to target a news organization for its coverage of him is his ongoing crusade against The Washington Post and its owner, Jeff Bezos, who is also the founder of the online retailer Amazon. (56)
Judging by his Twitter feed, Trump held generally neutral or positive views of The Washington Post and Amazon until the fall of...