Daily Archives: February 28, 2017

The facade of the Newseum in Washington, DC, features the First Amendment. Photo via PublicDomainPictures.net.

Attorney Floyd Abrams, who represented The New York Times in the 1971 Pentagon Papers case and went on to become Americas leading First Amendment litigator, talked with CJR about President Trumps unprecedented assault on the press, whether leaks from government officials are appropriate, and how the growing acceptance of speech restrictions is an ominous sign for our democracy. The conversation has been edited for length and clarity.

CJR: I know youre busy, so lets get straight to it. Shortly after the election, you said Donald Trump may be the greatest threat to the First Amendment since the passage of the Sedition Act of 1798. Why is he a threat?

Abrams: I dont think weve had anyone who ran for the presidency in a manner which suggested the level of hostility to the press than did Donald Trump. And we certainly havent had any president who has made as a central element of his presentation while in office a critique of such venom and threat as weve heard in the last month. Now, we dont know how much is talk and what if anything he may do as president apart from the impact of his words. That in and of itself is important. Any effort to delegitimize the press as a whole and any recitation of statements such the one just a few days ago, saying that the press is the enemy of the American people, itself raises serious issues even if he never took any legal steps against the press. Words matter. And the words of the president matter particularly. So a president that basically tells the people that the press is its enemy is engaged in a seriousand deliberately seriousthreat to the legitimacy of the press and the role it plays in American society.

CJR: How do you see this as unique to Trump as opposed to say the Nixon administration? Is this more of a wholesale condemnation of the press?

Abrams: Yes. This is an across the board denunciation of any and all press organizations that have published or carried stories which have been critical of the president. That goes well beyond anything President Nixon did. That said, its perfectly true to say that throughout American history weve had presidents who disparaged the pressJefferson himself did that more than once, sometimes amusingly, and sometimes not. Teddy Roosevelt authorized a criminal proceeding to be brought against Joseph Pulitzer for certain stories about the construction of the Panama Canal. So, its still earlyvery earlyin the Trump administration, but the signs are troubling, and the repeated effort to delegitimize the press as a whole is something new and extremely disturbing.

CJR: How could Trump, with his executive powers, actually launch an assault on the press that could threaten the First Amendment?

Abrams: He could do some of the things that President Nixon made some efforts at doing. The Internal Revenue Service has confidential information about the press leaders as well as everyone else. The Federal Communications Commission has broad authority over the broadcast medium. The Department of Justice has authority to determine when to bring Espionage Act claims. So, there are areas of governmental power and authority which could be called upon if a president were of a mind to do so and was willing to engage in a still more overheated public debate about the bona fides of any effort to do so.

CJR: Trump and others have denounced the culture of illegal leaks in Washington and called the deep state a threat to our democracy. Im wondering, what do you see as the difference between leaks by Edward Snowden or Daniel Ellsberg and their role in a functioning democracy, and the recent leak about National Security Adviser Michael Flynn, who was forced to resign after information was released about his meeting with Russian agents before Trump took office?

Abrams: First, let me say that Im not in favor of all leaks. I dont think the government should simply be open to anyone who has access to it, and I think that the behavior of WikiLeaksand in my view sometimes the behavior of Edward Snowdenmakes that case. I think there were documents, highly classified documents, made available by Snowden that had nothing to do with domestic surveillance, and a good deal to do with the ordinary and entirely proper efforts of the United States to protect itself in a dangerous world. That said, however, the information provided about former General Flynn seemed to me amongst the most important sort of data that served the public interest in becoming public. I mean here is a situation in which it appears that the very day that President Obama imposed sanctions on Russia that there were conversations, the substance of which we dont yet know, but conversations between General Flynn and a Russian ambassador and perhaps other Russian authorities. So from my perspective the central issue about him is not that he lied about it to the vice president. Vice presidents have been ignored throughout American history, and Im sure theyve been lied to more than once by people who viewed themselves as having more relevant positions. What concerns me is the possibility that General Flynn was essentially saying to a foreign nation that is adverse to our interests: Pay no attention to what the president of the United States is doing, well take care of that down the road. That would be highly improper and perhaps illegal.

CJR: So when people say Snowden was praised for revealing the surveillance of ordinary citizens, which is what people who use this argument say Michael Flynn was at the time, as well as Paul Manafort, Trumps former campaign manager, they are in fact not just ordinary citizens when they are speaking with foreign actors that are known agents, is that correct?

Abrams: Yes. A person who is closely involved with a president-elect is hardly the same as the people that WikiLeaks exposed by printing or making available the Social Security numbers of every sundry employee whose documents happen to come into WikiLeaks possession. So the more important the person and the more the person has a potentially direct impact on American public policy, let alone American national security, the more defensible it is in certain circumstances to find out information about his behavior and to reveal it to the public. And I think thats precisely where the revelations about General Flynn fit.

CJR: This administration has targeted the use of anonymous sources in particular, arguing that they are somehow fake or just a product of leaks with political intent. Do you think the press can do a better job of using anonymous sources?

Abrams: Well, a part of this relates to the manner of presentation. Is there a more revealing way to let the public know why the journalistic organization believes these sources are credible? One way they can do that, The New York Times and other publication routinely do, is use numbers. Six confidential sources said this. Where there is a way to identify why this source is credible, without revealing the identity of the source, or providing too much identity on how to determine who the source is, it should be followed. I dont think this is a fake news problem, this is a credibility problem. And its very important at this time that the press say as much as they possible can justifying their reliance on the sources that they have. Otherwise, you just wind up with White House Chief of Staff Reince Priebus or President Trump saying there are no sources, and no one having any basis to judge apart from ones own view as to the credibility of the publisher thats offering this information to the public.

CJR: In that same vein, youve said that the press may need to go on the offensive in terms of using litigation against claims by this administration that certain news stories are lies and certain news organizations progenitors of fake news.

Abrams: What Ive said is that there are situations that I could imagine in which statements made by the president or people high in his administration could give rise to libel litigation. Every other democratic nation that I can think of, all of which provide less First Amendment protection than we do, have some body of libel law, and libel suits are brought under them. I dont believe that its illegitimate for the press to avail itself of libel law in certain extraordinary circumstances. Now no one should know better than the press that we protect under the First Amendment a high levelan extraordinary levelof name calling, of generalizations, and rhetorical hyperbole. We do that on purpose. And I dont think that a general statementfor example, that the news is fakeis anything but that. The president is entitled to First Amendment rights as well as everyone else. And its important for the public to be able to hear and pass judgment on the president, and what hes saying, and what hes thinking. But there are things that might be said about particular journalists or particular news organizations which are false and known to be false by the person saying them. While the press is understandably used to defending libel suits, it ought to bear in mind that it has rights, too. And if the charges against it are clear enough, false enoughobviously known to be falseI think it should not give up the chance to use all the protections that the law affords it.

CJR: You famously represented the plaintiff in Citizens United defending the First Amendment rights of a conservative nonprofit corporation. Do you see the assault on free speech coming not just from Trump but also from speech codes and other speech restrictions on college campuses? Is there some relationship between whats happening with restrictions on speech on the left and whats happening on the right?

Abrams: I dont think one causes the other. But I do think that the farther down the road we go of limiting speech, whether its of the left or the right, the easier it is to use that precedent to limit others speech. So, yes, on campuses one of the main victims, and they are victims, of suppression of speech has been conservative groups. At Fordham University in 2012 here in New York, for example, the Republican Club wanted to invite Ann Coulter to speak and they werent allowed to do it. Basically the school said it would be alright if you had her on a panel. Thats a sort of disgraceful suppression of speech, and its occurred elsewhere at many universities. In 2013, the New York City police commissioner at the time, Ray Kelly, was shouted down at Brown University. Last year, the Israeli mayor of Jerusalem was shouted down at San Francisco State. Weve got a lot of situations in which speech has been limited or suppressed in an unacceptable way. Now I have to say, I dont think that President Trump would behave any differently than he does, or would have any different views than he does, whether or not this campus plague of speech suppression had occurred. But I am concerned that there has been on both sides and in a number of different contexts a willingness to limit speech, punish speakers, and otherwise act in a contrary way to both the law and the spirit of the First Amendment.

CJR: A 2015 survey of some 800 undergraduate students, sponsored by the William F. Buckley Jr. Program at Yale, found that 51 percent of students favor their school having speech codes and trigger warnings. Nearly one-third of the students could not name the constitutional amendment dealing with free speech. And 35 percent said that the First Amendment does not protect hate speech. Does that make it easier for the president and his administration to attack speech they disapprove of and the press in general?

Abrams: Well, yes it does. Ive thought for some time that one of the real contributions of any administration would be to take whatever steps they could to re-impose a requirement of a civics course in junior high schools or high schools in America. We need people who are educated about the Constitution in general and the First Amendment in particular at young ages, not the moment they get into college. But to the extent that we are moving towards living in a nation that simply accepts the notion that speech which is viewed as unhealthy or troubling should not occur, First Amendment norms fall easily. And to be clear, I mean First Amendment norms on the broadest level not just legal violations of the First Amendment but what I referred to earlier as the spirit of the First Amendment; that is an acceptance of the notion that people will have a lot of different views on a lot of different subjects, many of which will be difficult or even impossible to seem to live with, but which we at our best have always protected.

CJR: Its interesting that you bring up that civics course. I was just discussing this with Jeffrey Herbst, president of the Newseum in Washington, DC, which does a lot of outreach to try to teach young people about the First Amendment, but also about how to be a consumer of news, which to me seems extremely important.

Abrams: I couldnt agree more. And this one is not Donald Trumps fault, or one partys fault, or one view of the countrys fault. We really have abandoned our children to a very great degree in terms of teaching them what it is that makes the country so special, including the Declaration of Independence, the Constitution, the First Amendment. And its something which I think has to be taught while people are young. I dont blame college kids who get in and want people to behave nicely to each other. A lot of bad speech is nice speech. So it asks a lot of them to just pick up the notion that this is the price we have to pay to live in a free country, and that sort of teaching has to start much earlier.

CJR: Final question. Are you hopeful that, as much change as weve gone through in the news industry, the First Amendment will prevail and well continue to see the presss watchdog role played in different forms, through different business models, online and elsewhere?

Abrams: On that I am optimistic. I think the public wants it. I think there will be a market for it. Whether the press will be powerful enough to fend off presidential power is one issue. But on the broader issue of whether were likely to continue to have a press that exists in a meaningful way and does continue to fight the good fight, I think thats more likely than not. Thats one of the big advantages of having written the Bill of Rights down. I start out my latest book, The Soul of the First Amendment, talking about the Framers arguing whether to have a Bill of Rights at all. In Philadelphia, they voted against the Bill of Rightsunanimously. And Alexander Hamilton wrote in The Federalist, why should we write down something which is so unnecessary? We never said Congress could limit the press; why do we have to say it cant? And if the ultimate decision had not been made to have a written First Amendmentwhich is law, not just a political-science essaywe would live in a very different country. Because we have a First Amendment, I think it will continue to protect us against the widest range of challenges.

Read more:
Q&A: Floyd Abrams on the battle for the soul of the First Amendment - Columbia Journalism Review

President Donald Trumps war on the news media violates the spirit of the free press. How far can he go before he violates the letter of the First Amendment? Case in point: the exclusion of CNN, the New York Times, Politico and other media outlets from a White House press briefing Friday. It violates the basic constitutional ideal that the government cant discriminate among various speakers on the basis of their viewpoints. Under existing case law, however, the exclusion probably doesnt violate the Constitution, because the news outlets remain free to speak despite losing a degree of access.

To see why the White Houses actions were so constitutionally pernicious, begin with the U.S. Supreme Courts modern interpretation of the First Amendment. The core concept is that the government cant target certain ideas because of the perspective that they embody. The court calls this viewpoint discrimination. And its considered so serious a violation of free speech that it applies in areas that were traditionally considered exempt from the First Amendment, such as obscenity and libel.

If the goal of the First Amendment is to facilitate a free marketplace of ideas, viewpoint discrimination puts the governments thumb on the scale to the benefit of some ideas and the detriment of others. It makes the marketplace unfree.

If you prefer to think of the purpose of free speech as facilitating political participation by all citizens, viewpoint discrimination is equally wrong. Instead of allowing all ideas to contend to produce the political truth that will guide policy, viewpoint discrimination favors those with certain political ideas over others who disagree.

Plainly, then, the exclusion of some news media from Fridays off-camera gaggle with press secretary Sean Spicer violates the ideal that the government should preserve viewpoint neutrality. The whole point of excluding those news organizations was to punish them for expressing ideas Trump doesnt like and to favor alternative organizations the president prefers.

The exclusion comes close to violating existing First Amendment law. Certainly the government couldnt condition the exercise of a First Amendment right on a news organizations viewpoint. If reporters are allowed to participate in certain conversations -- and therefore report firsthand on them -- only if they take the government line, that could be construed as an unconstitutional condition on their speech.

Another way that the exclusion could be seen to violate existing doctrine is if the press gaggle is understood as a government-created forum for conversation with a White House representative. In such a limited public forum, the government may choose the subject matter. But its flatly prohibited from discriminating against certain participants on the basis of their viewpoints.

The counterargument to both approaches would be that the excluded organizations arent being prohibited from saying whatever they want. Theyre just being denied access. And theres no constitutional right to a private audience with a government official, even an official spokesman.

For example, the president can certainly choose among various possible interviewers -- and may lawfully consider the interviewers viewpoint in making that decision.

A court applying current doctrine might well adopt this narrow conception of the informal press gaggle. But that approach shows the limits of interpreting the First Amendment in the light of past practice when the president is devoted to finding new ways to limit the press.

In practice, blocking access for some organizations while providing preferred access for others is intended precisely to affect what the excluded organizations say. If youre in the room, you can report on what was said directly, without quoting another source.

Whats more, the news organizations arent passive recipients of whatever the spokesperson happens to say. The gaggle is a dialogue in which the questions may matter as much as the answers.

In that sense, the reporters participating in the gaggle arent just passively listening. Theyre actively speaking. Limiting attendance to preferred news organizations is deeply in conflict with principle of viewpoint discrimination.

The Trump administration may think its being cute by limiting press access without directly prohibiting speech. But a president who says he loves the First Amendment should be held to the standard of loving its values, not just its technical rules as currently interpreted.

The courts should be open to a broader interpretation of the First Amendment to fit the new challenges of the moment. If they arent, the freedom of the press runs the risk of becoming obsolete.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

Read the rest here:
Trump's Love-Hate Relationship With the First Amendment ... - Bloomberg