There is no shortage of explainers detailing President Trump’s limited ability to mess with the First Amendment. No, he can’t just snap his fingers and “open up” our libel laws so that he can more easily sue news outlets that publish scoops about him. No, he can’t just shut down a large broadcast network whose reporting he doesn’t like. There’s a lot of bluster in the president’s widely disseminated attacks on the press. “But as we approach the first anniversary of Trump’s inauguration,” wrote Politico magazine’s Jack Shafer last November, “we discover that the president’s gibbering about the alleged menace posed by the press has been followed by no action.”
At a recent event organized by the White House Correspondents’ Association, Trump’s anti-media rhetoric — including his frequent invocations of “fake news” — drew something short of outrage and incredulity from a panel of journalists. Peter Baker, who has two decades of experience covering the White House, said, “The people who say this has a broad impact on society and the credibility of the media and so forth and so on, I get their point.” He continued: “I don’t dispute that. In terms of my job, worried about working as a reporter in the White House, it doesn’t have that much impact. I mean, it’s just theater.”
Very effective theater, as it turns out. A telling story from the Associated Press comes under the headline, “‘Fake news’ smear takes hold among politicians at all levels.” The lead:
An Idaho state lawmaker urges her constituents to submit entries for her “fake news awards.” The Kentucky governor tweets #FAKENEWS to dismiss questions about his purchase of a home from a supporter. An aide to the Texas land commissioner uses the phrase to downplay the significance of his boss receiving donations from employees of a company that landed a multimillion-dollar contract.
President Donald Trump’s campaign to discredit the news media has spread to officials at all levels of government, who are echoing his use of the term “fake news” as a weapon against unflattering stories.
Imitators will surely proliferate as Trump’s tenure at the White House wears on. “Fake as hell CNN. The worst. So fake! Fake news,” Trump said at a Moon Township, Pa., rally over the weekend. “Their ratings are lousy, by the way. Compared to Fox.” Never one to stoop to ad hominem attacks, Trump at one point called Chuck Todd, moderator of NBC News’s “Meet the Press,” a “sleeping son of a bitch,” which is a slight variation on his former characterization of Todd as “sleepy eyes.”
Those characterizations, by the way, are amply protected by the First Amendment, which allows a president — or a journalist or a bricklayer — to engage in name-calling or sling fighting words. It’s a remarkable feat of double-tasking: Trump, at the very same time, has distinguished himself as the country’s most anti-First Amendment president and the one who most needs its precious protections.
Thank goodness that the Constitution won’t allow Trump to undo the First Amendment the way he does other policies — via whims, which blind-side everyone around him, that is. Yet Trump and his “fake news” crew don’t need to extract a constitutional amendment. They don’t need to manipulate the Federal Communications Commission. That’s because they’re taking aim at the very culture of the First Amendment.
A decade ago, University of Virginia law professor Frederick Schauer wrote that the “cultural pervasiveness” of the First Amendment “far transcends the existing contours of First Amendment doctrine.” He provided some examples:
Journalists couch not only their claims for access, but also much of their entire mission, in First Amendment terms. Academics even at private universities frame their pleas for academic freedom in the language of the First Amendment, just as students at those universities who feel their speech has been restricted make explicit recourse to the First Amendment in articulating their complaints. Librarians see the First Amendment as informing pretty much their complete raison d’etre, and artists and writers commonly use the First Amendment to frame their complaints against publishers, galleries, and even private museums. In these and countless other domains, a wide range of demands and platforms take on a First Amendment coloring, and not in any way very much connected at all with existing constitutional doctrine.
It’s on this plane that Trump is doing his most destructive work, tearing down the very idea that a free press is worth protecting. Just like North Korea or the tax cut, it’s too early to assess the long-term damage that’ll result from this Trump policy plank of delegitimizing the media. He probably doesn’t view it as a long-term project, one with tentacles reaching back to Spiro Agnew’s blast about the “wild, hot rhetoric” coming from mainstream media organizations.
As well all know, Trump has modernized the form, with a recent example coming from his Twitter feed:
In the short term, perhaps the attack on the New York Times boosted the audience for the lawyer story. In the long term, the impact looks less salutary. As press critic Jay Rosen noted to the Erik Wemple Blog, the attack poisons New York Times bylines among Trump supporters. “It means your reporting is rejected on principle. Is that ‘theatre?'” asks Rosen.