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.”
Excellent article, Dave. Thank you!
ReplyDeleteI've been hoping Trump's attacks on facts would prompt us to return to old-fashioned in-depth investigative reporting. I said so to a couple of friends just this afternoon. I've also been hoping our country would soon discover its mistake in electing Trump, making this presidency a "teaching moment" that would produce a dramatic shift in thinking on topics ranging from discrimination to education to healthcare. Perhaps we are like the adolescent having to learn lessons the hard way.
My hopes are mere dreams, perhaps, but as Emily Dickinson writes:
Hope is the thing with feathers
That perches in the soul,
And sings the tune without the words,
And never stops at all,
And sweetest in the gale is heard;
And sore must be the storm
That could abash the little bird
That kept so many warm.
I’ve heard it in the chillest land,
And on the strangest sea;
Yet, never, in extremity,
It asked a crumb of me.
Many people are donating to worthy causes like Planned Parenthood and the ACLU. Perhaps it's time to add The New York Times to the list.
I keep saying this is all so depressing - and it just keeps on being more depressing! I've also said, several times, I feel like I'm back in pre-War Germany when many decent people felt helpless to stop that hideous, hateful "machine" from crushing Jews, much of Europe and ultimately Germany itself. They felt helpless because they were helpless! - and I am feeling very much the same thing with THUMPF! I come back to my comment: It's depressing. And that's so sad - for the USA. REALLY sad.
ReplyDeleteThank you, Dave - for laying out this issue so clearly. God knows it's important!
Dave,
ReplyDeleteI think all of your readers should arrange to take out Key Man insurance on you - we need the in depth clear thinking about the Trump tsunami-level turbulence confounding us and our institutions!
Recently I’ve been thinking more and more about the window of history I have been privileged to witness during my life, and recognize that the kaleidoscope of change is accelerating before our very eyes. You have written your whole life about events and change and their intended and unintended consequences. Did you ever feel you were the right person with the right skills in the right place at the right time to capture and communicate their essence for others? Do you feel that way now?
I have come to believe energy is actually transferred between/among people in what some call prayer; others, positive thinking; etc. For we are each energy with a characteristic wave length. Ego-driven self-centered agendas, needs, and fears generate dense heavy energy. When we step away from them and concern ourselves with the wellbeing of others we generate a lighter energy, a differential as it were that functions like a vacuum pulling/attracting good things for others. Accordingly, I believe we need to be planful as we respond to Trump. If we respond with high levels of stress, rage, anger, even violence we will be adding our dark dense energy to his. On the other hand if we remember to breathe, focus, and think through our passions we will create a positive differential for the better.
Dave, your voice rings clearly through the debilitating miasma of Trump’s false news and his ignorance of our Constitution, balance of government, body of laws and precedents, and democratic institutions. The facts and opinions you share in your Report are a beacon that increases the clarity and focus of your readers’ thinking.
As a reader I thank you and hope you have ways to replenish your resolve and faith so you can continue. I offer my thoughts and prayers for your wellbeing. May your creative juices and courage continue to flow!
Respectfully,
Sue