President Donald Trump is not shy about his distaste for the press, and even for mainstream media entertainment.  President Trump recently characterized the media as “the enemy of the American people.”  He believes the media slants stories unfairly, uses quotes out of context, and even fabricates facts, to serve a political agenda.

The media has not taken these criticisms lightly.  Many journalists and politicians have spoken about the historical connection between media disrespect and authoritarian regimes.  To truly understand the import of Trump’s comments for this country, however, we need to examine the Supreme Court’s First Amendment jurisprudence relating to the media.  The Supreme Court protects the First Amendment rights of a fallible media – a media that is factually incorrect, misleading, and crass —  because the media is a necessary instrument to robust public discourse and informed democratic participation.  President Trump’s criticisms turn First Amendment jurisprudence on its head.  The media deserves deference from the government despite its flaws; the government does not deserve deference because of the media’s flaws.   

At the outset, it’s important to establish what is and is not problematic from a First Amendment perspective.  When President Trump attacks the media, he is not violating the First Amendment.  Only when a government actor directly abridges speech, by prohibiting speech or favoring some speech, are First Amendment protections triggered. The government may engage in its own speech, and state actors can select certain viewpoints over others when the government itself is speaking.  (This is why courts should be cautious in labeling speech as “government speech,” but Donald Trump’s remarks qualify.) Indeed, President Trump’s skepticism about some journalists and news organizations is not without merit.  Journalists, some motivated by their own biases, worldviews, desires to pander to audiences, and ideas about social justice, emphasize certain narratives and downplay others.  Criticism of the media is important, so that the media continues to serve as an honest broker in unflinchingly chronicling news and social trends.

However, President Trump’s criticism of the media, like his criticism of judges, is intended to de-legitimize the institution, dismissing the truthful articles along with the slanted ones and undermining Americans’ faith in a free press.  Trump’s relentless attacks on TV stations and newspapers is hyperbolic and often lacking in evidence.  Although The New York Times may have an agenda that distorts its coverage, there is no reason to believe it is inventing anonymous sources or not rigorously vetting articles.  Plus, our First Amendment protections mean that other newspapers can compete with The Times, further ferreting out the real story.  When President Trump attacks the media as an institution, he seeks to corrode the very values that support our First Amendment, which produces an informed citizenry by fostering open dialog that challenges authority and orthodoxy and scrutinizes the government.

 
So many of our First Amendment protections derive from cases where the media misrepresented information, acted crassly, engaged in behavior that many would consider unethical.  Many of our most cherished First Amendment freedoms come from cases where the media coverage has been false or unwise.  For example, in New York Times v. Sullivan, the newspaper printed a full-page civil rights advertisement that contained several factual errors about events unfolding in Montgomery, Alabama.  The advertisement misstated the violence of the police response to civil rights protestors and falsely depicted the police as apathetic towards threats against Dr. Martin Luther King, Jr.  Despite these highly unflattering factual errors, the Supreme Court held that, under the First Amendment, the Montgomery Public Affairs Commissioner could not sue The Times without evidence that the misrepresentations were made with “actual malice.”  The Court understood that newspapers will make mistakes, but that constant fear of factual errors will cause newspapers to forego making some statements that are likely true.  Quoting a D.C. Circuit opinion, the Court noted that “[c]ases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors.”

The Supreme Court has also protected the freedom of the media to publish speech that many might find objectionable or intrusive.  In Hustler v. Falwell, Hustler Magazine had the right to publish an extremely offensive parody cartoon that depicted famous minister Jerry Falwell having drunken sex with his mother in an outhouse.  The holding of Florida Star v. B.J.F., was that the Florida Star could not be sued for publishing the name of a rape victim after the name was printed in a police report.  In Bartnicki v. Vopper, the Court held that a radio station could not be held criminally liable for airing an illegally intercepted and recorded conversation in which a union president and chief negotiator discussed resorting to violent tactics in negotiating with a school board.  These cases were all decided based on “our profound national commitment to the principle that debate on public issues be uninhibited, robust, and wide-open.”  As a result, “neither factual error nor defamatory content, nor a combination of the two, sufficed to remove the First Amendment shield from criticism of official conduct.”

Even when the media invades people’s privacy, hurts others’ feelings and reputations, or publishes false information (so long as it is not recklessly or intentionally false), the media’s speech is protected.  The media, perhaps the most important First Amendment institution, needs “breathing space” to get it right.  Fear of self-censorship by the media, not media error, is a primary First Amendment evil.

This is why Donald Trump’s fairly unhinged crusade to sow disrespect for the media has major implications for the values underlying the First Amendment.  Those who cast the media as the enemy of the people are the enemy of our free speech culture.  President Trump’s treatment of the media ignores our history honoring robust public discourse through widespread dissemination of information.  Those in positions of authority do not provide the appropriate check on the media.  The media needs space to correct itself, because without it, there is little check on authority.