From Nixon to Trump: Freedom of the Press in Difficult Times

If the freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.

George Washington

In 1962, at what he called his “last press conference,” Richard M. Nixon told reporters that they “won’t have Nixon to kick around anymore.” It turned out not to be his “last,” and as we found out many years later, President Nixon’s “enemies” list included many reporters and publishers.

Most presidents have had run-ins with the press, but Richard Nixon may have been the first one to raise press-hating to an art form. By the time he ran for president in 1968, his attitude towards the press had become part of his strategy. He got elected, started calling the press the “media,” wiretapped reporters’ phones, sent the IRS after reporters he didn’t like, and got re-elected.

In August of 1974, Nixon resigned in disgrace. He was brought down by a vigilant press.

It hardly needs to be said that a free press is essential to a free America. Thomas Jefferson famously wrote that if he had to choose between government without newspapers or newspapers without a government, “I would not hesitate a moment to prefer the latter.” Of course, that was many years before he became President and changed his mind.

We do have a historical blemish, the Anti-Sedition Act of 1798. That law, signed by President John Adams, made it a crime to speak negatively about the government. The Act expired by its own terms, and President Jefferson pardoned those who had been convicted,

Presidents since Nixon have criticized the press, but none has questioned the basic rights and responsibilities created by the First Amendment. It appears, however, that our new President does just that. According to him, the press is “the enemy of the American people.” He recently told the Conservative Political Action Conference that the press “doesn’t represent the people … and we’re going to do something about it.”

He didn’t say what he has in mind, but those italicized words should give all of us the shudders. The freedom to criticize government without fear of reprisal is fundamental to our way of life. Tension between the Presidency and the Fourth Estate is supposed to happen. It’s healthy for America.

The Anti-Sedition Act never made it to the Supreme Court, but Justice William Brennan wrote that the Act has been rejected in the “court of history.” Those words appear in his landmark 1964 opinion in New York Times v Sullivan, a defamation suit brought by an Alabama police commissioner. Justice Brennan’s opinion includes the much-quoted pronouncement that under our Constitution, the United States has “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”  Such speech, he went on to note, may include “vehement, caustic, and sometmes unpleasantly sharp attacks on government and public officials.”

Since then, in case after case, the Supreme Court has upheld our right of free expression, even for the “thought that we hate,” to quote Justice Oliver Wendell Holmes.  Unlike some areas of constitutional law, this is not a matter of “liberal” versus “conservative” values. Justice Scalia, a conservative who believed that the Constitution should be understood according to what it meant when it was adopted (“originalism”), was a strong defender of freedom of speech and press. It appears that Supreme Court nominee Neil Gorsuch is cast in the same mold and will be a strong supporter of the First Amendment.

One of President Trump’s campaign promises was to “open up those libel laws,” referring to easing the heavy burden imposed by the New York Times case on public officials suing the press. He claims that press reports critical of him and his administration are “fake news.” Someone should tell him about the ill-fated Anti-Sedition Law and New York Times v. Sullivan.

2017-05-19T20:27:29+00:00 By |