SAN FRANCISCO (CN) – A panel of journalists and media law experts on Wednesday predicted the many ways a president-elect who made vilifying the media a centerpiece of his campaign might use his power to muzzle the press.
During the campaign, President-elect Donald Trump vowed to “open up” libel laws and make it easier to seek damages from journalists. He suggested he might go after The Washington Post – a publication highly critical of him during the campaign – saying it had “a huge antitrust problem” because of its owner, Amazon CEO Jeff Bezos.
The president-elect has flouted established norms by refusing to release his tax returns, hold regular press conferences or allow journalists to travel with him. He has also used Twitter to bypass traditional forms of media and publicly attack his critics.
During a forum at the Association of American Law Schools annual meeting in San Francisco, six speakers painted a bleak picture of what press freedom could look like under a Trump presidency.
Beyond continuing to attack the legitimacy of media institutions, experts say the president-elect could also shut out the White House press corps, withhold information from the public and build on President Barack Obama’s legacy of prosecuting whistleblowers who leak secrets to journalists.
University of California, Irvine law professor Erwin Chemerinsky said if Trump wants to stifle transparency and target journalists, he need look no further than his predecessor for guidance.
Citing a Dec. 30 op-ed written by New York Times reporter James Risen, who fought a seven-year legal battle to keep his source confidential, Chemerinsky noted that Obama has prosecuted more whistleblowers under the 1917 Espionage Act than any prior administration.
“If the Trump administration wants to harass reporters, it could,” Chemerinsky said.
The Obama administration subpoenaed reporters under threats of jail time to reveal their sources and allowed the FBI to seize Associated Press journalists’ phone records to pin down the source of a government leak. Those actions may have opened the door for Trump to continue targeting journalists in the same fashion, the panelists said.
“It’s a great chilling effect if the administration chose to use its surveillance powers under the DOJ, NSA and even the IRS,” University of Georgia law professor Sonja West said, adding some reporters may resort to using disposable “burner phones” like drug dealers to communicate with confidential sources.
When covering a closed administration, the ability to report news from confidential sources without fear of prosecution or intimidation is essential, according to University of Florida law professor Lyrissa Lidsky.
“When cutting off traditional norms like the White House press pool, leaks become more important,” Lidsky said.
Lidsky called Trump’s pledge to “open up” libel laws “the least threatening aspect” of his hostile rhetoric toward the media. Libel law is a product of the states’ tort laws, she said, and the president lacks the power to alter those statutes.
Furthermore, Chemerisnky noted, the 1964 Supreme Court ruling New York Times v. Sullivan established that a publisher must know a statement is false or act with “reckless disregard” for the truth to be held liable for defamation. Lidsky said even conservative justices are “committed to libel jurisprudence.”
San Francisco Chronicle editor John Diaz said his newspaper’s attorneys always try to determine if a good-faith effort was made to verify facts and “get it right” when they review a piece for potential liability.
“I can’t imagine him altering it to say ‘getting it right’ is not a defense,” Diaz said of the president-elect’s threat to alter libel laws.
Even though Trump has never won one of the many libel suits he has filed, Lidsky said defending a libel suit can be “incredibly expensive” for publishers and is an effective tactic to chill speech.
The panelists agreed that growing distrust of the media, borne in part by Trump’s attacks on the press, poses one of the greatest challenges to covering a Trump presidency.
“Something has happened to the reputation and popularity of the press,” moderator and University of Utah law professor RonNell Jones said. “How did this happen?”
The press used to push back against government officials who withheld information or cut off access to journalists by writing op-eds, but the media’s power to galvanize public opinion has waned with its dwindling popularity, Lidsky said.
Chemerinsky argued the press is not alone in suffering a loss of reputation in the eyes of the American public.
“All institutions are less popular now,” the law professor said, adding that approval ratings for Congress and the Supreme Court are also at all-time lows.
Trump’s very public disagreement with U.S. intelligence agencies over their assessment that Russia hacked the Democratic party’s emails to influence the U.S. election is one instance where a president-elect’s tweets can quickly discredit what most major news outlets reported as reliable information backed up by credible sources.
Diaz said while Trump’s frequent use of Twitter to spread contrarian information may be novel for a commander-in-chief, he won’t be the first president to try to manipulate the media by throwing out news and statements that journalists feel compelled to report.
“Every administration has tried to find ways to orchestrate the press,” Diaz said. “Trying to bypass the filter is a time-honored thing in Washington.”
The Chronicle editor predicted journalists will be “tested in ways we haven’t been tested in a long time” under a Trump presidency, but he left open some room for optimism.
He noted the last time the nation had a secretive president hostile to the press was during the Nixon administration, and that “was really the media’s finest hour” – referring to the historic revelation of the Watergate scandal by Bob Woodward and Carl Bernstein of The Washington Post that led to President Richard Nixon’s resignation.
Trump said this week he will hold his first press conference since July on Jan. 11, ending a 168-day stretch with no news conferences. It is widely anticipated the president-elect will discuss plans to separate himself from his family’s global business, the Trump Organization, to avoid the appearance of conflicts of interest, but Trump and his team have yet to reveal whether such an announcement will be made.
The Trump-Pence transition team did not immediately respond to an email seeking comment on the incoming administration’s commitment to press freedom or its stance on whether journalists should be able to keep their confidential government sources secret.