The Press and the Expectation of Executive Counterspeech.

• Author: Jones, RonNell Andersen
• Position: Symposium: Truth, Trust and the First Amendment in the Digital Age

1. INTRODUCTION

   Few catch phrases have burst onto the American political and journalistic scene with as much vigor as the term "fake news." President Donald Trump first used the expression in a tweet as president-elect, (1) and it rapidly became his go-to response to a wide variety of news reports, ranging from allegations of his campaign's ties to Russia, (2) to assertions of sexual assault (3) or discussions of the significant turnover in White House staffing. (4) President Trump and his advisors have never specifically defined what they mean when they label a story from the press "fake news," (5) but it has now been invoked as a retort on hundreds of occasions--in interviews, at public appearances, and on social media. (6)

   The "fake news" retort is just one of a number of recent presidential responses to press coverage that have proven unsatisfying to critics because they are nonresponsive--that is, they lack clear, substantive content or verifiable facts that specifically counter the news story or otherwise clarify the truth. (7) Other nonresponsive retorts, including bare labeling of coverage as "bad" (8) or "wrong," (9) generic comments about what "people say," (10) vague threats that President Trump possesses contrary but unspecified evidence, (11) or ad hominem attacks on individual journalists, (12) share the same frustrating traits as the "fake news" rejoinder. These responses assert what is not but contribute little concrete, additional information about what is.

   Commentators have noted--and complained about--the apparent trend, (13) but most of their criticisms have been focused on the ways that the "fake news" mantra evidences an unquestioning political base (14) or demonstrates an unfortunate disrespect for the role of the press. (15) In fact, however, much more is at stake when the president routinely offers nonresponsive retorts to press reporting. The greater, but mostly unrecognized, harm is that these retorts are being offered as a substitute for counter-assertions by--and engagement with--the executive. If a news report that is distributed to the public is erroneous, then democracy and First Amendment values are served by the president contributing more information with additional accuracy--not by the president shutting down dialogue with nonresponsive retorts or labeling the news coverage "fake" without revealing what the truth is. On many topics, the President of the United States is better positioned than anyone in the world to counter misinformation and to clarify and correct errors. A president's unwillingness or inability to do so violates longstanding constitutional norms and upsets jurisprudential expectations about the role of the press, the role of government, and the flow of information in a democracy.

   This Article explores the wider constitutional and democratic consequences of a president's refusal to engage in counterspeech on matters of public concern. It argues that both fundamental principles of First Amendment theory and watershed cases from the United States Supreme Court presuppose a constitutional system of dialogue between the press and the executive in which the president offers verifiable, supported, fact-based counterspeech to press coverage with which he disagrees. Part II of this Article describes how marketplace-of-ideas, self-governance, and checking-function principles--although more often invoked to protect private speech from governmental restriction--also manifest a longstanding assumption of executive counterspeech. It explores the clear expectation within First Amendment jurisprudence that presidents will dialogue with, rather than shut down, the press when the press's reporting on matters of public concern is erroneous, misleading, or otherwise faulty. Part III of this Article describes the essential characteristics of this democracy-enhancing counterspeech and the ways in which nonresponsive retorts fall short of meeting the constitutional aims envisioned by the Court. Part IV details the harms that follow from these failings. I argue that, in addition to having the significant consequences of hampering government accountability and the public's quest for truth, flouting the norm of executive counterspeech diminishes the wider tone of dialogue nationally and threatens the viability of the larger marketplace of ideas. The abandonment of this norm creates a grave threat to the democracy-enhancing role of accurate press coverage. But it also disserves democratic and free-speech values when the press coverage is inaccurate. Indeed, despite the President's apparent goal of disparaging the press, his failure to engage in executive counterspeech may leave the press itself insufficiently checked by the executive.

2. THE EXPECTATIONS OF EXECUTIVE COUNTERSPEECH IN A SYSTEM OF FREE SPEECH AND PRESS

   The theoretical and jurisprudential underpinnings of the American system of free speech and press understandably focus on the private speaker. Because the First Amendment erects a barrier to governmental regulation of speech, (16) the justifications for our system of free speech center on private expression. Thus, when we consider the ways that free speech enhances our search for truth, our efforts for self-government, and our goal of governmental accountability, we ordinarily do so through the lens of the private speaker. But this analytical scaffolding is not sustainable by mere individual freedom to speak. Scholarship exploring these themes, and United States Supreme Court jurisprudence animated by these themes, evinces a wider expectation--indeed, a democratic imperative--that the executive will be a participant in meaningful conversations on matters of public concern and will respond with substantive counterspeech to erroneous assertions by the press on those issues.

   1. The Expectation of Executive Counterspeech in Major Free Speech Theories

      A set of oft-cited theories provide the foundation for a system of free speech and press in our democracy. (17) Three of the primary theories justifying such a system--the marketplace-of-ideas theory, the Meiklejohnian self-governance theory, and the checking-function (18) theory--all share a largely unrecognized central premise. All three analytical approaches implicitly assume that government officials in a democracy will engage in dialogue with the public and the press. (19) The values of finding knowledge and truth in a marketplace of ideas, of facilitating representative democracy, and of checking abuses of governmental power are all advanced by meaningful executive counterspeech. All are crippled by its absence.

      1. The Marketplace of Ideas and Executive Counterspeech

         At the very heart of modern First Amendment jurisprudence is a free-speech theory with a longstanding pedigree. The belief that "the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market. . ." (20)--is both "the theory of our Constitution" (21) and the structure on which all our important national conversations are built. The model is, at base, an adversarial one: if truth and falsehood battle, truth will emerge the victor. (22) In the process, the public benefits. When the tested material proves false, correct information replaces incorrect information. When the tested material proves true, believers gain a "clearer perception and livelier impression of truth, produced by its collision with error." (23)

         The marketplace theory tells us not only why free discussion matters--"for advancing knowledge and discovering truth" (24)--but also how participants in free discussion ideally behave. "An individual who seeks knowledge and truth must hear all sides of the question, consider all alternatives, test his judgment by exposing it to opposition, and make full use of different minds." (25) The theory thus envisions an active exchange, a vibrant give-and-take, and "participation in decision making by all members of society" (26) as they take "precautions against their own fallibility" (27) and offer additional information to others who are doing the same. The envisioned contributions to the marketplace are not merely subjective ideas or opinions that the speaker hopes she may be able to persuade others to adopt, but also objective, factual information that the speaker possesses that would inform others. (28) The theory thus anticipates that speakers who are invested in an outcome and know facts that would inform the discussion will provide them to the marketplace. Such a system "is an essential mechanism for maintaining the balance between stability and change" because it "provides a framework in which the conflict necessary to the progress of society can take place without destroying the society." (29)

         The United States Supreme Court has embraced this marketplace notion, expressing a jurisprudential confidence that "the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones." (30) When speech in the public square is asserted to be offensive, (31) dangerous, (32) or false, (33) the Court consistently responds that "the remedy to be applied is more speech....," (34) The Court frequently reminds us that the Founders valued liberty not merely as an end, but as a means to the discovery and spread of truth. We protect ourselves as a nation, the Court says, through discussion--with meaningful contributions to the marketplace of ideas designed to counter, refute, and clarify other contributions. (35) Making those contributions, then, is "a political duty" and "a fundamental principle of the American government." (36)

         Although the marketplace-of-ideas analogy is most often invoked against government regulation of the marketplace in ways that would hamper discourse among private speakers, (37) the theory is plainly premised on the assumption...