Less than 24 hours being sworn in, Donald Trump declared the first war of his presidency—on the media.
Going to the CIA’s headquarters on Saturday morning, Trump immediately brought up the “dishonest media,” transitioned into praise for the agency that he said was going to destroy ISIS, and then resumed trashing the press: first for saying he didn’t get along with America’s spies (he called "Nazis" last week), and then for the inaugural coverage.
“And the reason you're my first stop is that, as you know, I have a running war with the media,” Trump said. “They are among the most dishonest human beings on Earth… We had a massive field of people. You saw them. Packed. I get up this morning, I turn on one of the networks, and they show an empty field…”
Trump didn’t stop there—even though his inaugural attendance was lower than former President Obama’s, according to numerous overhead photo comparisons. He lambasted Time magazine for saying his staff removed a bust of Rev. Martin Luther King, Jr. from the Oval Office—saying it was hidden behind a cameraman.
“Now, the big story—the retraction was, like, where?” Trump said. “Was it a line? Or do they even bother putting it in? So I only like to say that because I love honesty. I like honest reporting.”
Trump’s tirade didn’t stop there. Hours later, Sean Spicer, his press secretary, called the White House press corps into the into James S. Brady Briefing Room in the White House—which, last weekend they threatened to close—and lectured them for “deliberately false reporting” on the crowd size and the MLK bust.
“There's been a lot of talk in the media about the responsibility to hold Donald Trump accountable,” Spicer said. “And I'm here to tell you that it goes two ways. We're going to hold the press accountable, as well.”
The first war under Trump’s presidency is with the press and it's escalating. It’s not just floating the idea the White House pressroom may move. It’s not just last week’s pre-inaugural press conference where Trump labeled BuzzFeed and CNN as fake media. It’s not just his latest tweets criticizing celebrities who don’t like him, or dismissing the millions of women who marched on Saturday.
These incidents all raise a very serious question, what’s going to happen the First Amendment with a bully in the pulpit?
The answer, according to a handful of lawyers specializing in First Amendment and press issues, is Trump is primed to use his office’s great power to intimidate, obstruct, censor, spy on and silence the media. In the most visible instances, bullying, the president faces no restrictions on saying anything—regardless of its truth or victimization.
"He can say whatever he wants using whatever means he chooses," said James Goodale, Chief Counsel for the New York Times during the Pentagon Papers case and a leading legal expert on the First Amendment, when asked if Trump faces any restrictions on presidential speech and adding that he cannot be sued for his outbursts.
But the damage is likely do quickly go deeper and escalate in far more serious ways than mere wars or words.
“Our soon-to-be president could weaken the American system of free expression… [with] techniques that involve weakening and undermining the institutions and practices that enable public opinion to check state power and legitimate our system of democracy,” wrote Jack Balkin, the Knight Professor of Constitutional Law and the First Amendment and Director of The Information Society Project at Yale Law School, in a prescient article late last year.
Baklin listed five likely abuses of the presidential podium, most of which we've already seen from Trump and his aides. They start with the fact that Trump is a habitual liar. Trump “has found a way to lie so boldly and so frequently that it's virtually impossible to hold him to account,” he said. “If politicians lie all the time, and never pay a price for it, there's no reason to believe any promises they make.”
Next was the related propaganda technique called “gaslighting,” Balkin said, or “creating a false reality and causing the public to doubt what is actually true or false. By making everything uncertain and a matter of ideological perspective, government officials stoke anger and distrust in elite institutions on the one hand, and produce cynicism, resignation and despair on the other.” That’s what spokeswoman Kellyanne Conway did this earlier month when she told CNN to stop listening to Trump’s literal words and trust what was in his heart—meaning a president-elects’s words have no literal meaning.
As Melik Kaylan, a longtime reporter who has covered authoritarian regimes noted in Forbes, such intentional chaos is a reality TV ploy that also serves political strongmen. He drew on comments to MSNBC by Michael Hirschhorn, a top reality TV producer, that such gaslighting helps authoritarian regimes, because, like a TV series that never ends, “you don’t resolve disputes; you foster them endlessly to retain public attention… You stay entertained but confused, paranoid even. That’s why you need [leaders like] me.”
While that fact-blurring dynamic is becoming the ‘new normal’ under Trump, there are other ways that he can go after the media, Balkin wrote, anticipating what we keep seeing. Trump and his team can deny access—or threaten it by closing a West Wing briefing room, and requiring journalists take drug tests, as Esquire reported. He can stonewall or not release information, as voters saw with his income tax returns during the campaign, or by not giving media access to administration paper and electronic records.
Most disturbing, Balkin said, was Trump can use federal surveillance tools against journalists.
“These institutions constructed formal and informal rules and norms designed to prevent abuse by the White House,” he said, referring to the FBI, CIA and NSA. “But as Richard Nixon's presidency demonstrated, these rules and norms don't always work, and given enough time, a determined President can chip away at or circumvent many of them.”
This is not a hypothetical threat, said Erwin Chemerinsky, dean and Raymond Pryke Professor of First Amendment Law at the University of California Irvine School of Law, in a paper sent to AlterNet. Trump’s hostility to the press is well-established, he wrote, giving the best-known examples of going after a disabled New York Times reporter, former Fox News host Megyn Kelly and Kelly Tur of NBC. “The Trump campaign denied press credentials to media that criticized him, including the Washington Post, Buzzfeed and Politico. His statements about [weakening] libel law also reflect his lack of understanding of the law and the First Amendment.”
On the libel front—where the press can be dragged into court to face accusations of intentionally published incorrect and damaging information—the press has less to worry about there, the First Amendment lawyers said. On the other hand, they face very real worries about executive branch surveillance and spying on them.
“Trump can’t change the libel laws. The libel laws are created by State Legislatures and are subject to Constitutional limitation,” said Goodale. But Goodale said Trump could go after journalists to reveal their sources.
Indeed, Trump has already tried to do this, pressuring NBC to reveal who inside the intelligence community leaked critical documents about him. “If the federal government subpoenas reporters who do not wish to testify about their sources they can go into contempt and defy Trump,” Goodale wrote, adding that was not always successful. “[The Times’] Judith Miller tried this and lost. [The Times’] James Risen defied the government and won (they decided not to hold him in contempt).”
Shockingly, it is Obama who’s given Trump a blueprint for going after leakers to the media and sources, Chemerinsky said, by using The Espionage Act of 1917, a broad law allowing prosecution for disclosing national security information. “Since its enactment, 12 prosecutions have been brought for disclosure of information and nine in those were during the Obama administration.”
“There is no First Amendment right for a reporter to keep a source confidential,” he said. “Many states, like California, have shield laws that allow for this, but there is no such law at the federal level. This gives the President a powerful tool to harass and intimidate the press.”
The First Amendment lawyers agreed that the stakes are enormous, because the media—whether mainstream reporters, alternative press, blogs or social media—is the Constitution’s check and balance against political tyranny.
On a more day-to-day level, Trump’s deepening war with the media means the public is going to have to get used to a president that lies, distorts, bullies and evades. Meanwhile, the media is going to have to get used to being threatened, hounded and likely spied on—and possibly prosecuted—if it dares speak true to power in Trump’s America.