What Trump's presidency portends for free speech, media: David M. Rubin

Donald Trump

Republican presidential candidate Donald Trump points to the media as he addresses the crowd during a campaign stop at the Minneapolis International Airport Sunday, Nov. 6, 2016, in Minneapolis. The candidate's disdain for the media is likely to persist as he assumes the presidency.

(Charles Rex Arbogast / AP)

David M. Rubin, former dean of the S.I. Newhouse School of Public Communications at Syracuse University, is a regular columnist for The Post-Standard and syracuse.com. Email him at dmrubin@syr.edu.

What is the possible impact of the Donald Trump presidency on freedom of speech and press? He has provided clues, so let's read his tea leaves.

Access to information. We have a federal Freedom of Information Act (FOIA) whose purpose is to provide legal access to documents bearing on the public's business. However, prying those documents out of the bureaucracy can be a long, expensive and ultimately fruitless pursuit depending on the attitude of the administration in power. The bureaucracy takes its cues from the president on how to respond to FOIA requests. President Barack Obama said his administration would support freedom of information. He didn't. Given President-elect Trump's unwillingness to release his own tax returns, he might not support it, either.

Access to presidential events and to President Trump himself. In Borreca v. Fasi, a federal court stated that when a government official holds a public meeting in a government venue, he cannot pick and choose which journalists may attend. However, if Trump chooses to freeze out some journalists by not talking to them, or instructing his subordinates to do the same, he is within his rights. (See Baltimore Sun v. Ehrlich.) He has no legal obligation to talk to any particular journalist. The system of credentialing White House reporters, however, could become very messy if Trump withholds credentials based on the content of the journalist's coverage. That would be unconstitutional.

Scheduling regular press conferences. Obama did not schedule many full-dress press conferences. Given his love of the limelight, however, Trump might well reverse this trend. That would be welcome.

Prosecution of government employees who leak national security information. Obama was zealous in prosecuting leakers, sending some to jail. In order to limit leaking, Trump could continue this practice to instill fear in the bureaucracy. Additionally, he could up the ante and do what no president has ever done: Prosecute a journalist under the Espionage Act for providing information to the enemy. Win or lose, such a prosecution would put most reporting on national security issues into a deep freeze.

Department of Justice subpoenas served on journalists and media organizations. During the Obama years (and before), journalists were viewed as useful repositories of information that might help criminal investigations. The Department of Justice historically has subpoenaed journalists to learn the identities of confidential sources, or to get journalists to share information they had about a subject, such as drug dealing or the Black Panther Party. (See Branzburg v. Hayes). The Obama administration used subpoenas to get phone and credit card records of journalists to help identify sources. Journalists fought these subpoenas vigorously. The Obama administration backed off and adopted rules to reduce the issuance of such subpoenas. However, a new Attorney General appointed by President Trump could rewrite these rules and aggressively force journalists to testify. Journalists have gone to jail for refusing to answer subpoenas. More could be going to jail in a Trump administration.

Libel law. During the campaign, candidate Trump threatened to change libel law so that it would be easier to sue journalists for defamation. Libel, however, is a matter of state law over which President Trump would have no direct control. He could sue all he likes and force news organizations to spend scarce funds defending themselves, but he is not likely to win. Trump and Congress could pass a new restrictive federal libel law, but the Supreme Court would probably strike it down. This court is not likely to upend the protections provided to everyone since 1964 in the landmark New York Times v. Sullivan decision that requires a public official to prove "actual malice" to win a defamation suit, a very high barrier for any public official to surmount.

Supreme Court appointments. The current court is quite supportive of free speech, including free speech for corporations (see the controversial Citizens United v. Federal Election Commission decision). Truly "Conservative" judges that Trump might appoint, modeled after the late Antonin Scalia, are likely to be just as supportive of robust free speech. Trump will not be able to predict how judges who oppose abortion or transgender rights will decide free speech and press cases.

Media monopoly. The Anti-Trust Division of the Justice Department and the Federal Communications Commission will have much to say about the pace of media consolidation. The proposed acquisition of Time Warner by AT&T will now be a matter for President Trump to consider. Major content producers (Time Warner) and distributors of that content (AT&T) already dominate the media marketplace. Would Trump try to halt that trend, or let it continue? Hard to say.

This picture is not very encouraging, but perhaps I am being too pessimistic. I hope so, because history suggests that one strong indicator of authoritarian rule is an end to press freedom. Turkey is undergoing this right now. So is Russia. We must resist that path with all our energy. Our Republic depends on it.