GateHouse: Trump violates the First Amendment in attack on NBC

Matthew T. Mangino

GateHouse Media

October 13, 2017

“With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!”

                              President Donald Trump, Twitter, October 11, 2017

Gordon Smith, president of the National Association of Broadcasters, denounced President Trump’s threat in an interview with the Los Angeles Times. “The founders of our nation set as a cornerstone of our democracy the First Amendment, forever enshrining and protecting freedom of the press,” said Smith.

“It is contrary to this fundamental right for any government official to threaten the revocation of an FCC license simply because of a disagreement with the reporting of a journalist,” he said.

Robert B. Reich, a professor of Public Policy at the University of California at Berkeley and former Secretary of Labor in the Clinton Administration, wrote last year that over the course of history, tyrants have tried to control the press using four techniques:

     -- Berate the media and turn the public against it;

     -- Limit media access;

     -- Threaten the media; and

     -- Bypass the media and communicate with the public directly.

President Trump constantly berates the media. He pounds away at what he calls “fake news.” His administration has limited media access. For a period of time not conducting press briefings and conducting few press conferences for the president. He has threatened NBC’s license due to unfavorable stories and as the “King” of twitter he continues to bypass the media to speak directly to his supporters.

So you’re not convinced that Trump’s disdain for the media is indicative of his desire to be America’s first dictator. Well, what would you say to his disdain for the media being a violation of the Constitution?

Sure the president has the right to fully exercise his constitutional rights through the First Amendment. However, certain people in powerful positions, like say the president, have some limitations on what they can say.

In 2015, Seventh Circuit Court of Appeals Judge Richard Posner wrote an opinion overturning an Illinois sheriff’s efforts to cajole credit card companies to drop service to a webpage that was involved in promoting some unsavory services.

The sheriff was not taking direct legal action against the companies, but he did send threatening letters to their offices, pressuring them to cut off services, according to Reason Magazine. Posner wrote that government officials are not allowed to make such threats.

“A public official who tries to shut down an avenue of expression of ideas and opinions through ‘actual or threatened imposition of government power or sanction’ is violating the First Amendment,” wrote Posner.

Judge Posner, who abruptly retired from the bench in September, continued, “A government entity, including therefore the ... Sheriff’s Office, is entitled to say what it wants to say -- but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens ... a government’s ability to express itself is (not) without restriction.”

After Trump’s tweet, Andrew Schwartzman, a media law specialist at Georgetown University Law told The Washington Post, “Obviously, when a public official, much less the president, threatens media outlets with any kind of legal proceedings, it is a cause for grave concern as a First Amendment matter.”

Schwartzman also noted an historical precedent. In 1973, allies of President Richard M. Nixon challenged the individual licenses of television stations owned by The Washington Post. The famed duo of Bob Woodward and Carl Bernstein worked for the Post and were hot on the trail of Nixon and his involvement in the Watergate cover-up, which ultimately cost Nixon the presidency.

Those challenges were baseless and unsuccessful, Schwartzman said. Just as Trump’s threats against NBC have no merit, nor any chance of success.

-- Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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