Trump has violated the first amendment rights of the press since the beginning of his presidency. Now the courts have said enough.
The First Amendment
People often misquote the first amendment thinking that they can say whatever they want wherever they choose without consequences. For context the first amendment states that: 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.
You can substitute the word Congress with the word government. What is the government? Well there are three branches of government: executive, legislative, and judicial. Congress, which is mentioned in the amendment, is the House and the Senate. The judicial branch is the court system. Which leaves the executive which includes the president.
So let’s look at this again. The President of the United States shall make no law abridging the freedom of the press. Let’s simplify that. The President cannot curtail the freedom of the press. Let’s simplify that even further. The President cannot impose a restriction on the press.
For the purposes of our definition of the word press it generally means the collective designation of media vehicles that carry out journalism and other functions of informative communication. So let’s simplify our definition even further. The President cannot impose restrictions on journalists.
So the first amendment doesn’t say that the President can restrict journalists that he doesn’t like, journalists who don’t treat him fairly, journalists who lie on or about him, or journalists who are fake. If journalists are enemies of the people, the first amendment to the Constitution of the United States plainly states that the President of the United States cannot impose restrictions on journalists. Period. Stop.
In 2019 the Columbia Journalism Review reported that the Trump Administration began revoking hard press passes of journalists who, coincidentally, were critics of the Trump Administration. Most notably among them was Jim Acosta of CNN. During a contentious interview with Trump, Acosta asked some pressing questions about the administration’s immigration policy. When Trump refused to answer, Acosta refused to give up the microphone and continued his line of inquiry. Later that day when Acosta tried to access the White House like he customarily had, he was told that his hard pass had been revoked because of his behavior.
Perhaps Trump’s attorneys advised him that his behavior was unsustainable because very soon thereafter Acosta’s access was restored. According to reporting the Administration’s change of heart probably had more to do with the following:
U.S. District Court Judge Timothy Kelly ruled in favor of CNN’s request for a temporary restraining order that rescinded the White House’s decision to yank Acosta’s hard pass, which gave him access to the White House grounds. The order lasts for 14 days, multiple outlets reported.
Hours after that ruling, Sanders and communications chief Bill Shine sent Acosta a letter saying the Trump administration had come to a “preliminary decision” to once again revoke his press pass once the temporary court order expires. They gave Acosta the option to “contest” that initial decision, however, before they came to a “final determination.”
While Trump was concentrating all of his ire at CNN and Acosta, PEN America was trained on his flank. PEN America is a 501(c)(3) whose primary mandate according to their website is to: stand at the intersection of literature and human rights to protect free expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. That’s a broad mandate indeed.
Which is why President of PEN America Jennifer Egan filed suit against the Trump Administration in the Southern District of New York citing among other things that “there have been multiple instances where critical coverage has resulted in reprisals. The suit cites the barring of CNN reporter Kaitlan Collins from a press conference “because Collins had earlier asked the president questions that the White House deemed ‘inappropriate’,” and press secretary Sarah Huckabee Sanders telling CNN’s Jim Acosta “that she would block him from having future access if he attempted during President Trump’s bill signing to ask the president a question about one of his tweets attacking Senator Kirsten Gillibrand”. That sounds suspiciously like the president imposing restrictions on journalists, which is a violation of the first amendment.
After the failed attempt to impeach Trump because of his sycophants in the Republican party coupled with Mitch McConnell’s fast tracking of judges appointed throughout the judicial branch, you might think my enthusiasm that Trump is held accountable to be pollyannish. And up until recently I would have agreed with you.
If At First You Don’t Succeed…
However on March 24 a federal court ruled against President Trump claiming “he has used government power to retaliate against media coverage and reporters he dislikes in violation of the First Amendment. Specifically, the court denied a government motion to dismiss the case and will allow it to go forward on allegations that President Trump has retaliated against the White House press corps and certain holders of security clearances who work as media commentators based on their First Amendment-protected speech”.
The plaintiffs argued that under the First Amendment’s protection for freedom of speech, President Trump can Tweet his displeasure and even verbally voice his displeasure, but he cannot credibly threaten or use government resources to impose restrictions against the media for its coverage.
The Trump Administration argued that PEN America did not have standing to sue and the court agreed on four of the counts, but disagreed on one: the Trump administration revoked the White House press credentials and security clearances of media commentators. The next stage is discovery. That means a lot of previous administration officials like Sarah Sanders are going to require legal representation, as she was White House Press Secretary at the time.
I know that it is easy to feel like all is lost. As of January 20, 2020 Trump has made 16,241 false or misleading statements according to the Washington Post. He is seldom held accountable. But we can hold him accountable in November of this year. Don’t forget he works for us, and as it is with any employee, it’s to us to fire him or extend his term of employment.