A Bad Day For A Free Press
While today was a good day for civil liberties, yesterday was a bad day for a free press as it was attacked on multiple fronts. The attacks on press freedom came from three directions, the courts, overseas, and from within the press itself.
During the presidential campaign in 2016, Donald Trump promised to “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money”. Justice Clarence Thomas wants to help Trump do that.
In a landmark case, New York Times v. Sullivan, in 1964, the Court ruled that that public figures could not sue for defamation unless they could show the statements in question were made with “‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not”. This ruling put a stop to widespread practice of public figures and government officials abusing libel laws in order to silence both protest and the press by threatening a defamation suit, whether the statements in question were, on balance, true or not. Justice Thomas wants us to return that era.
In a remarkable opinion that accompanied the Supreme Court’s decision not to hear the arguments in a defamation case brought against Bill Cosby, Thomas wrote, the plaintiff “asks us to review her classification as a limited purpose public figure. I agree with the Court’s decision not to take up that fact-bound question. I write to explain why, in an appropriate case, we should reconsider the precedents that require courts to ask it in the first place. New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law…We should not continue to reflexively apply this policy-driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we…The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.”
Contrary to what Thomas states, prior to the 1964 decision, newspapers were routinely crippled for printing minor factual errors through defamation and libel suits brought by public figures and government officials. Moreover, Thomas’ plea for originalism ignores the history of the framers when newspapers were far more partisan and vituperative than they are today. What Thomas is proposing is a pretty powerful attack on the concept of a free press and would result in a severe constriction of the First Amendment. We have already seen how a media outlet can be thoroughly destroyed through this process with the collapse of Gawker. Thomas apparently wants more of that.
I guess it should not surprise as that an accused sexual predator would want to “open up libel laws”. And it also should not surprise us that the lawyer representing the plaintiff was Charles Harder, previously Trump’s libel lawyer. It should also be noted that this remarkable opinion from Thomas comes just days after his wife had a rare private meeting with Trump and the Thomases were feted by Trump at the White House.
On Monday, a veteran New York Times reporter, David Kirkpatrick, was detained while trying to enter Egypt and then summarily put back on a flight to London. Under President el-Sisi, Egypt has been cracking down hard on the press. That has included restrictions on Western media as well, sometimes resulting in expulsion. With little push-back from the Trump administration, Egypt, among many other countries, has been emboldened in attacking not only the domestic media but also representatives of the Western press as well. The US Embassy in Cairo at least protested, stating “We’re concerned about reports of the unexplained refusal of entry to Egypt of a U.S. citizen New York Times journalist. We have raised our concerns with Egyptian officials.” However, I doubt we will hear anything on this from the State Department or the President. Considering that Egypt is willing to take this step while being the third largest recipient of US aid, it seems that el-Sisi is pretty confident of where Trump stands. Of course, Trump has made that very clear with his numerous statements decrying the media as “the enemy of the people”.
Finally, CNN announced that it was hiring Sarah Isgur to coordinate its 2020 political coverage. Isgur is a unique and unusual choice to say the least. Isgur has spent her career as a right-wing political hack, working for the Federalist Society, on various campaigns for Romney, Cruz, and Fiorina, and, most recently, as a spokesman for Jeff Sessions at the DOJ. More importantly, she has absolutely no journalistic experience. None. She has called CNN the “Clinton News Network”, supported conspiracy theories about Planned Parenthood and Seth Rich, and worked with a Breitbart reporter to publish a false story downplaying Sessions’ contacts with Russians. She reportedly pledged loyalty to the Trump in order to get her job at the DOJ. While that might make her a potential CNN commentator, it certainly does not qualify her to oversee CNN’s 2020 political coverage.
Needless to say, line reporters at CNN are deservedly “upset and confused” by this decision. But despite Trump’s constant attacks on the outlet, it has long been a bastion of Trump support. Its relentless focus on Clinton’s emails may have been the norm for 2016 but it continued to find places for Trumpsters, including Corey Lewandowski, Michael Caputo, and Jeffrey Lord. None of this should be surprising if you believe Cheri Jacobus who claims “Lewandowski told me point blank in June 2015 that Trump had Roger Ailes and Jeff Zucker ‘in his pocket’.” That would make sense considering Trump is basically a racketeer.
Lastly, considering the administration’s and Jeff Sessions’ aggressive tactics against reporters in pursuing the source of leaks, it should be especially disconcerting that Sessions’ former chief spokesman who has reportedly pledged loyalty to Trump is overseeing reporters and potentially discussing their sources for a story.
CNN’s decision reeks of an intimidated press that is engaging in self-censorship in order to protect itself from attacks from the government. This is exactly the media environment that Putin has created in Russia. The Trump administration’s disinterest in defending Western media abroad is merely an extension of how it treats the free press at home. And Clarence Thomas is indicating a willingness to basically gut the constitutional protections that free press currently enjoys. All in all, a bad day for the freedom of the press and America.