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As the house optimist, I keep finding intact democratic guardrails and weaknesses in Trump’s attempt to impose a dictatorship. But this is the one that really keeps me up at night.
Traditional press freedom is already at risk because of the travesty of what so much of the media has become. It’s not clear what sort of First Amendment protections the shabbier forms of social media even deserve.
But with the second coming of Trump, it’s the mainstream fact-based media that’s in the crosshairs. What’s gotten the most attention lately are Trump’s own threats to sue for libel and a few actual suits. These are mostly outlandish, but sufficiently serious to have caused legacy media to pay protection money.
Last week, ABC shockingly gave Trump $15 million to settle a defamation suit that it could have easily won. Far from appeasing Trump, this kind of settlement will only whet his appetite. Even more bizarre is his lawsuit against The Des Moines Register, which had the temerity to publish a poll showing that Trump might lose Iowa.
We can expect more of this; and count on grifter Trump to maximize his leverage for other aspects of his protection racket. Washington Post publisher Jeff Bezos, who has lots of other businesses affected by administration policy, threw a million dollars at the Trump inaugural, a notorious slush fund. Democracy dies in conflicts of interest.
The broader threat of defamation suits and the cost of defending them and occasionally having to pay damages risks media company bankruptcy. These threats also lead publications to pull their punches in reporting the news.
Those risks would be severely compounded if the right gets its way and the landmark Supreme Court decision Times v. Sullivan is watered down or repealed. In that 1964 case, the Court, voting 9-0, increased the standards required for public officials to win a defamation case. The decision held the plaintiff must prove not only that a published statement was false and defamatory, but that the statement was made with “actual malice,” meaning the defendant either knew the statement was false or recklessly disregarded whether it might be false.
The Times v. Sullivan standard has been repeatedly upheld. But two current Supreme Court justices, Clarence Thomas and Neil Gorsuch, have called for overturning Times v. Sullivan. Congress might also attempt to achive that by statute. This would leave the press vulnerable to suits whose legal costs alone could ruin many media outlets.
In some ways, the most ominous of the threats to our free press is the creation of an American official secrets act. Currently, some 40 nations have formal official secrets acts, roughly modeled on Britain’s Official Secrets Act of 1911. Under such an act, journalists or other citizens can be held criminally liable for publishing or disclosing official secrets, even if they had never signed a national-security oath pledging to keep such information secret.
In the U.S., the closest equivalent to an official secrets act is the Espionage Act of 1917. Some of it has been held to be unconstitutional, allowing the media to do its job of publishing embarrassing leaks of classified information without reporters or publishers risking prison. But it has been upheld for dissemination of some categories of secret information such as cryptography.
Congressional enactment of a formal official secrets act would make it far harder for a free press to do its job. The Trump administration will surely act to overclassify information in order to conceal misdeeds and would use the new legislation to intimidate or bankrupt a critical press.
As journalists, all we can do is redouble our vigilance, and hope that even the Roberts Court may be willing to eviscerate the administrative state but not the Constitution.
