What Trump Can Do to Limit Freedom of the Press

November 23rd 2016

Tricia Tongco

In light of President-elect Donald Trump's many threats to sue various news organizations over the course of his campaign, you might be concerned over what he could do to restrict freedom of the press.

In order to find out what Trump has the power to do as president, ATTN: spoke to Peter Scheer, a lawyer, journalist, and the executive director of the First Amendment Coalition, a nonprofit public interest organization that aims to advance free speech and public participation in civic affairs.

Trump can do as many or as few press conferences as he wants.

As ATTN: has previously written, Trump has broken presidential precedent by not holding a press conference in the days following his election. Instead, on Monday he released a YouTube video describing his goals for his first 100 days in office.

According to Scheer, the president-elect has total control over how many press conferences he does, but pre-recorded, scripted videos may not be a good substitute. “If he just put out videos, like he did [Monday], it would be very bad for the country, because people would be denied the opportunity to see him discussing, defending, and describing his administration’s policies in response to unrehearsed questions," he said.

The public would likely notice the difference in how Trump interacted with the press, according to Scheer. "Reporters tend to be good proxies for the public — they can be liberal, moderate, or conservative — but they would lose the power to ask tough questions and would frustrate their function as a kind of communications bridge between the president and people,” he said.

It's unlikely he could change libel laws to make it easier to sue journalists.

Such a change would require the lofty task of amending the constitution, which would require a proposal "either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the state legislatures," Scheer said.

Additionally, the president would be up against Supreme Court decisions, which are incredibly difficult to reverse. "The deck is stacked against public figures and officials who file libel suits against individual journalists and media organizations under the First Amendment, and the Supreme Court has decided that creating a legal climate conducive to free and open debate on public issues is more important than finding vindication for every slight against the reputations of public officials and figures," Scheer said.

The Trump administration could take a more aggressive stance in subpoenaing journalists.

Through the Department of Justice, it’s certainly possible Trump’s administration could subpoena journalists for information on how they obtained classified information, according to Scheer.

“There’s great uncertainty as to how much protection they have in that area, because it comes from policies and internal rules of the justice department,” Scheer said. “Unfortunately, in my view, the Trump administration could declare war on media and could rip up policies requiring prosecutors to demonstrate there’s no other way to get information than to subpoena a journalist."

Obama has also been criticized for certain decisions in this realm. Jonathan Peters at The Columbia Journalism Review summarized Obama's history in regards to this topic:

Obama’s DOJ has used the Espionage Act to prosecute government employees suspected of leaking to journalists more than all other administrations combined. Trump could carry on that tradition. Similarly, in 2013, Obama’s DOJ confirmed that it had secretly obtained phone records of Associated Press reporters and a “portfolio of information” about a Fox News correspondent, all to investigate the sources of various leaks. For seven years, too, Times reporter James Risen “lived under the threat of jail for refusing to reveal a confidential source” in the criminal trial of a former CIA officer accused of providing him classified information. Again, Trump could carry on those traditions—or worse.

On the bright side, Obama’s DOJ did create new guidelines limiting the DOJ’s discretion to obtain reporters’ records, and Obama pushed for a federal shield bill that would allow reporters to protect their confidential sources and data. The shield went nowhere, and it’s worth mentioning that White House concerns about some of its provisions initially were seen as threats to the bill. At any rate, a Trump administration probably would not go out of its way to create or push for similar journalistic protections.

In a similar vein, President Trump could change the Freedom of Information Act if he had the support of Congress, according to Scheer. "That would make it much harder for ordinary citizens and others to request access to records," he said.

Beyond changing the law, Peters notes that Trump “could affect its implementation,” writing:

"[T]he DOJ’s Office of Information Policy oversees agency compliance with the FOIA…Trump’s authority to appoint the attorney general would enable him to shape the OIP’s priorities and operations. It would also enable Trump to influence the substantive arguments the government would make in FOIA litigation."

There's something else to watch out for...

In Scheer’s opinion, the biggest threat Trump may pose to First Amendment is likely not a frontal assault on journalists or news organizations. "If you were really determined to get the Washington Post to stop writing critical stories about the administration, you wouldn’t necessarily declare war on The Post, but you would get all the agencies of the federal government to make life miserable for Amazon, which is also owned by [Post owner] Jeff Bezos, making it very hard for his primary business to continue to grow and innovate successfully and effectively," Scheer said. "And unlike a public war on media, it could happen without anybody being aware of it."