By David K. Shipler
It might be time to recognize that President Trump’s tweets and ill-tempered outbursts about the press are not just scattered impulses but part of a foundation being carefully laid to stifle investigative reporting and robust expression by the country’s news organizations. And a large plurality of Americans will be with him, as he showed during the campaign, when roars of approval greeted his threatening vilification of reporters covering his rallies.
Now, in office, he and his new attorney general, Jeff Sessions, are in a position to test the limits of the First Amendment by various means, including legal actions that might be too expensive for any but the major news outlets to withstand. These could include extreme measures to silence government whistleblowers, aggressive demands on reporters to identify their confidential sources, and even moves to prosecute editors for publishing classified information. A Trump administration might make another attempt at prior restraint, which was repelled in 1971 by the Supreme Court, 6-3, when the Nixon administration tried to block publication of the Pentagon Papers, the secret history of the Vietnam War.
Some responsible news organizations are already bracing for the onslaught and have redoubled their efforts to dig beneath the visible news. They now include on their websites instructions on how to use various encrypted communications to “share news tips with us confidentially,” as The Washington Post explains. The Post, The New York Times, and The New Yorker, for example, include links to such mechanisms as WhatsApp, Signal, SecureDrop, Strongbox, and Pidgin, with details on how much information about sender and receiver is retained by the providers. Even where the texts of messages are encrypted, some providers keep metadata—users’ phone numbers, email addresses, and time stamps—which could be subpoenaed by government to show that an official has been in contact with a reporter.
These invitations to get in touch are useful, but they’re passive. The press also needs to assign beat reporters to regulatory agencies that have never received much day-in, day-out coverage. Getting into the weeds where mid-level officials reside, and finding what the columnist James Reston used to call “the man with the unhappy look on his face,” is essential for documenting the subtler shifts in rules and enforcement that are likely under Trump and the team of dismantlers he has assembled.
Newspapers have traditionally been the leaders in digging out the important stories, with broadcasters following behind, but with the print media’s finances suffering in the digital age, it’s far from certain that they’ll devote the labor to the task. (When I emailed a question on this to the Times Washington Bureau Chief, Elisabeth Bumiller, she didn’t reply, and there’s not much evidence in the paper’s news columns that it’s being done.)
On the other hand, the Trumpian era of bizarre chaos and “alternative facts” has promoted a hunger for reliable news, apparently, as seen by a spike in Times digital subscriptions, up a net 276,000 in the fourth quarter of 2016. It would be a perverse benefit if Trump’s antics saved serious journalism.
Trump is using several methods to lay the groundwork for whatever crackdown on the press he can get away with. First, he is stoking fear by exaggerating the terrorist threat using the autocrat’s customary method: I know what you don’t. Second, his acolytes are inventing terrorist attacks that didn’t happen and accusing the press of ignoring them. When an actual attack comes, as it surely will, Trump is likely to blame the courts and the press, plus Muslims generally and perhaps even Democrats—or the women who marched in pink pussy hats the day after his inauguration! Nobody scapegoats with more zeal than Trump.
Further, when news organizations expose wrongdoing in the national security arena, several steps could be taken. Most obviously, Trump’s Justice Department can use the tools left by President Obama, who prosecuted more government leakers than all previous presidents combined, and employed the unsavory 1917 Espionage Act to do it. Trump’s people might even persecute, harass, and fire whistleblowers in non-security areas such as the Environmental Protection Agency, Health and Human Services, Housing and Urban Development, the Labor Department, and the Equal Employment Opportunity Commission. The federal whistleblower statute would protect them ultimately, but the hardship of defending themselves would be a deterrent to their talking to reporters in the first place.
Journalists themselves can be targets. The First Amendment right to freedom of the press does not protect them from a court order to identify their confidential sources in criminal cases, the Supreme Court has ruled. And while nearly all states have shield laws that provide various degrees of qualified privilege, no such statute exists at the federal level. So if Trump’s prosecutors decide to go after reporters for their anonymous sources, and if judges grant the motions (not all would in all circumstances), reporters must comply or risk jail time for contempt of court.
A next step could be taken into relatively uncharted territory if a federal prosecutor charged a reporter or editor for disclosing classified information. The effort might not succeed if the right combination of judges saw it as an assault on the First Amendment, but the threat alone would be chilling. Unlike Britain, the US has no official secrets act that makes such publication punishable. Still, in a time of fear and tension, whether rational or not, is it unthinkable that Trump would try individual prosecutions? Or even get the supine Republican-led Congress to pass such a statute? Even if the case did not survive in the courts, the litigation would take years—years of relative silence, except by only the bravest journalists.
Finally, the prior restraint that Nixon sought to prevent the Times and the Post from continuing to publish the Pentagon Papers failed only narrowly in a Supreme Court that inserted caveats and escape clauses into its ruling. There were alternate scenarios that might justify preventing publication in advance. Since editors routinely seek administration comment on stories disclosing secret information, officials are likely to know when something is coming and might try again to rewrite the case law by getting court approval of prior restraint.
The president is creating, probably deliberately, an atmosphere conducive to anti-press action by government: There is no truth, no neutrality of viewpoint, only your own beliefs, which are truer than so-called facts. Trump discovered the broad appeal of the Big Lie when he peddled the fabrication that President Obama had probably been born outside the United States. Nearly half of Republicans believed the myth. Since then, “fake news,” mostly on Trump’s behalf, has been created on websites looking to make money as conspiracy zealots click on ads and spread the slanders. Since his election, his most persistent Big Lie (there are many smaller ones) has been that mainstream journalists are “the most dishonest people” and traffic in “fake news.” In other words, my fellow Americans, don’t believe a word they say.
It was probably Rush Limbaugh who first weaponized the “fake news” accusation by turning it around to delegitimize responsible newspapers and broadcasters. I heard him do it on his show weeks before Trump began to use it that way, and it built logically on Limbaugh’s longstanding attacks on what he calls “the drive-by media.” Trump appears unique, but much of his rhetoric is just an exaggerated version of what other Republicans have done before. Trump’s smears against federal judges, for instance, grow naturally out of conservative Republicans’ perennial condemnation of “activist” jurists—by which they’ve always meant liberals on the bench, not those conservatives who also stretch the law and Constitution to suit their ideologies.
Trump inherited the cynical national mood that these Republican calumnies helped foster. Therefore, his clumsiness masks a grander scheme, as Adam Gopnik writes in the current New Yorker:
“Some choose to find comfort in the belief that the incompetence will undermine the anti-Americanism. Don’t bet on it. Autocratic regimes with a demagogic bent are nearly always inefficient, because they cannot create and extend the network of delegated trust that is essential to making any organization work smoothly. The chaos is characteristic. Whether by instinct or by intention, it benefits the regime, whose goal is to create an overwhelming feeling of shared helplessness in the population at large.”