What Will Next President Do For (or Against) Freedom of Information?

June 8, 2016

Many journalists have been disappointed with the Obama administration's performance on open government. But the next president — whoever it may be — could well be much worse.

Not one to avoid sweeping generalizations, Trump likes to excite followers at his rallies by calling news media "dishonest scum."

Some commenters say Donald Trump has declared "war on the press." But Hillary Clinton has herself given little access to the news media during the campaign so far.

Worse yet, parts of the news media seem to be making the problem worse, by not advocating for press freedom and open information. Profits and ratings have trumped the First Amendment.

One defining moment in this year's presidential campaign came May 31 when Donald Trump held a press conference to defend himself against a Washington Post story suggesting he had welshed on his pledge to raise money for veterans.

When Post reporter David Fahrenthold asked Trump whether he had given money only after reporters asked about it, Trump replied, “You know, you’re a nasty guy. You’re a really nasty guy.” It went downhill from there, with Trump saying reporters who asked questions "are not good people."

Paul Waldman chronicled the press conference for the Post, under the headline "Donald Trump Declares War on the Press."

This sort of thing had been standard throughout the campaign. At the large rallies that were a Trump mainstay, journalists were restricted to what Trump staff called a "pen," while Trump supporters were free to roam around and assault protesters.

Trump campaign manager Corey Lewandowski threatened in November to "blacklist" CNN reporter Noah Gray if he left the "pen." That prompted TV network reps to talk about pushing back, but they mounted no effective effort.

Violence against journalists has also occurred at Trump rallies. At one rally February 29 at Radford University in Virginia, TIME photographer Chris Morris was grabbed by the neck and thrown to the ground by a Secret Service agent after briefly leaving the "pen." The incident raised the question of whether Secret Service agents should properly be enforcing unusual restrictions on the press at the behest of a candidate — much less using physical violence.

Trump's campaign manager, Corey Lewandowski, was arrested for simple battery after a March 8 incident in which he allegedly grabbed the arm of former Breitbart reporter Michelle Fields. The incident was recorded on video. Lewandowski denied the charges, which were later dropped.

The Trump friction with the media is about more than logistics and access or a jostling scrum. Back in February, he declared he wanted to change laws that protect media freedom.

"We're going to open up those libel laws so when The New York Times writes a hit piece, which is a total disgrace, or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected," he said at a Fort Worth rally. "We're going to open up libel laws and we're going to have people sue you like you've never got sued before."

It's only small comfort that Trump has scant understanding of U.S. libel law — which is not something set by the President. Libel law at the federal level is mostly a product of common law and case law, and hardly even set by Congress-passed stature. The Supreme Court (nominated by the President and confirmed by Congress) does have a say. But a lot more of U.S. libel law is also set by the states, which also are beyond the President's reach. Still, the plaintiff in a libel suit has a lot of power if he or she can show malice.

Trump's litigious nature is well known. He sued biographer Timothy O'Brien in 2006, claiming that O'Brien had defamed him by understating his wealth. Millionaire or billionaire? — it might have been pure comedy if Trump had not dragged in attacks on the confidentiality of sources and launched subpoenas against the likes of New York Times executive editor Bill Keller. In the end, Trump's suit was thrown out by the courts — having produced negligible legal results but big publicity.

It is worth remembering that governments can not bring libel suits, although an individual government official can bring suit for statements made about him or her individually.  Such suits are rare (government officials must overcome stouter defenses because they are "public figures"), and it is more common for libel suits to be filed against government officials.

Legal changes aside, there is a lot a president can do to hurt press access without changing laws. The policies of agency press offices follow signals sent from the White House. Public access to information is partly determined by executive branch positions in scores of rulemakings.

And the presumption of openness (or secrecy) under the Freedom of Information Act has varied dramatically during recent administrations — a policy which has been set by executive order. A FOIA reform bill currently pending in Congress would codify the presumption of openness, but it remains to be seen whether that legislation will be enacted in the waning days of this highly politicized Congress. While President Obama has not actually endorsed it, he might well sign it (in the previous Congress, the Obama administration killed it with secret opposition), and its chances are far murkier in the next administration and Congress.

If Trump were to be elected president, and if he were to succeed in damaging the First Amendment, the news media might largely have themselves to blame. At the beginning of Trump's candidacy, few thought he had a chance at the nomination. But he was great entertainment. The TV networks found that he produced great ratings, so they gave him more and more coverage. The coverage became huge — eventually the equivalent of hundreds of millions of dollars in free political advertising. That coverage — much more than other candidates got — boosted Trump's popularity with the public. The high ratings boosted advertising revenues for the TV networks.

Not every media executive looked on the situation with a high-minded sense of journalistic duty.

"It may not be good for America, but it's damn good for CBS," said CBS chairman Les Moonves said February 29 at a San Francisco media conference. ""Man, who would have expected the ride we're all having right now? ... The money's rolling in and this is fun."

Paul Waldman, in a June 3 opinion piece for the Post, suggests that after Trump's May 31 rant, the news media may finally have reached a turning point and be ready to stop rolling over for Trump. Time will tell.

"Good journalism — the kind that matters," Dan Rather wrote June 1, "requires reporters who won't back up, back down, back away or turn around when faced with efforts to intimidate them. It also requires owners and other bosses with guts, who stand by and for their reporters when the heat is on."

All of this raises some questions about media freedoms in any future presidency. Will press covering federal agencies be confined to "pens"? Will federal law enforcement officers be tasked with keeping them there? Will FOIA requests be denied by default when agencies have discretion? Will government lawyers actively promote libel suits against journalists?

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