Can President Trump Close Down the Press?
It is no secret that President Donald Trump is at war with America’s print, broadcast, and social media-based press. From the “failing” New York Times to “fake news” CNN; the news media have been cast as “enemies of the people.” President Trump is not the only President to voice objections about the media: Presidents Richard Nixon, Lyndon Johnson, and Bill Clinton come immediately to mind.
But President Trump’s supporters have gone a step further, suggesting that the President should shut down selected media. (It should be noted here that President Trump has not directly called for a shutdown.)
A recent poll indicates that a plurality of self-identified Republicans say they want President Trump to have the power to take down ‘bad’ media outlets. Forty-three percent want to give President Trump the authority to close down certain news outlets, according to a new public opinion survey conducted by Ipsos.
Let’s dig into these numbers. As noted above, 43 percent of those polled who identified as Republicans said that “the president should have the authority to close news outlets engaged in bad behavior.” Only 36 percent disagreed. Further, when asked if President Trump should shut down specifically named media such as CNN, The Washington Post, and The New York Times, 23 percent of Republicans agreed, although 49 percent disagreed. They also agreed with President Trump’s “enemy” statements. A near majority — 48 percent — agreed that “the news media is the enemy of the American people;” only 28 percent disagreed. In addition, 79 percent believed “the mainstream media treats President Trump unfairly.”
Some Democrats and Independents also expressed support for closing down the press, although to a significantly lesser degree. Again, regarding the proposition that “the president should have the authority to close news outlets engaged in bad behavior,” 12 percent of Democrats said yes and 74 percent said no; 21 percent of Independents said yes and 55 percent said no. There were 12 percent of Democrats in agreement with the “enemy” rhetoric; 74 percent disagreed. As for Independents, 26 percent agreed and 50 percent disagreed.
Perhaps these Trump supporters need a lesson in the First Amendment, which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Historians will point out that attempts to suppress the press despite the First Amendment are nothing new. In the lead-up to and during the First World War, President Woodrow Wilson appointed Albert Burleson Postmaster General, and armed with the Trading with the Enemy Act and the Espionage Act, Burleson took aim at any newspapers that might print anything that hurt America’s war effort. Of course, there was no such thing as electronic media at the time, but as Postmaster General, Burleson had power over the main distribution avenue for newspapers and periodicals — the post — even though he had no power to simply shut a newspaper down. Under the Trading with the Enemy Act, Burleson required editors of foreign language (such as German) newspapers to provide to the government English translations of any articles they wanted to publish that were in any way related to the war for to review prior to publication. Faced with onerous costs of complying with this new requirement, many papers instead ceased publication.
Under the Espionage Act, which was enforced with fines of up to $10,000 and prison sentences of up to 20 years, Burleson barred some papers from the post or revoked second-class mailing permits, which quadrupled their costs of mailing and made them unaffordable to many readers. In 1919 the Supreme Court upheld the Espionage Act and instituted the “clear and present danger” test in Schenck v. United States. The Court held that if a publication presented a clear and present danger to the safety of the United States, it could be suppressed despite any First Amendment protections. The Acts were again upheld during World War Two.
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A number of more recent Supreme Court cases have applied constitutional law to uphold press freedom. For example, in the 1964 case of New York Times Co. v. Sullivan the Court held that when a publication involves a public figure the plaintiff must prove that the publisher acted with “actual malice,” that is that he knew the statement was inaccurate or that the publication acted with “reckless disregard of its truth.” The case protected publishers from libel awards for mistakes of fact. The Times again was the plaintiff when, in 1971, the Supreme Court upheld the Times’ right to publish the “Pentagon Papers.”
Most recently, President Bush invoked national security to threaten the New York Times with prosecution after it published information about the National Security Agency’s warrantless surveillance program, that was put in place to track terrorists following the September 11, 2001, terrorist attacks. No lawsuit actually was ever filed.
President Trump has not invoked national security, at least not so far, and seems to base his opprobrium on “fake news” and personal attacks. Despite his supports’ wishes, it is highly unlikely that any shutdown of the press would survive constitutional scrutiny.
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