We Can Help Protect the First Amendment
By Dave Vergobbi
“Democracy depends upon journalism.”
-- The Society of Professional Journalists.
I’m betting many of you had a unique fall semester in 2016. Mine was. It actually began December 15, 2015, when Donald J. Trump stated at a Republican presidential debate in Las Vegas, “We have to go see Bill Gates and a lot of different people that really understand what’s happening. We have to talk to them about, maybe in certain areas, closing that internet up in some way. Somebody will say, ‘Oh freedom of speech, freedom of speech.’ These are foolish people. We have a lot of foolish people.” I was alarmed that a presidential candidate would make such a statement, but I dismissed it. I knew Trump couldn’t actually win.
Then on February 26, 2016, perfectly complementing my media law class engagement with the hard-won New York Times v. Sullivan’s actual malice standard that put libel law on a First Amendment basis and finally eradicated seditious libel—guaranteeing our right to criticize our government and its officials—Trump said at a rally in Fort Worth, Texas, “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. 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.” I was alarmed that a presidential candidate would make such a statement, but I dismissed it. I knew Trump couldn’t actually win.
As the campaign proceeded, Trump blacklisted reporters and media that challenged him; actually confined journalists to fenced areas at his rallies, the better to berate and encourage attendees to jeer the reporters; refused to hold press conferences; consistently tagged legitimate news media as liars; and outmaneuvered journalists to keep them from reporting on his post-election meetings. For my two media law sections and my freedom of expression class in fall 2016, student questions and concern culminated on November 29, 2016, when Trump tweeted, “Nobody should be allowed to burn the American flag—if they do, there must be consequences—perhaps loss of citizenship or year in jail.” I was alarmed that a presidential candidate would make such a statement, but now I could not dismiss it. Candidate Trump was now president-elect Trump.
My alarm is not alone. Thomas Burr, 109th president of the National Press Club, wrote on November 20, 2016, in The Salt Lake Tribune that “[m]ore than 20 press freedom groups—like the Society of Professional Journalists, the American Society of News Editors, Reporters Without Borders, and the Committee to Protect Journalists—signed on” to Burr’s unprecedented “open letter to President-elect Trump, imploring him to stand by the traditions of a protected press pool and to set an example for the other countries in freedom of the press.” Meanwhile, freepress.net asked in its December 15, 2016, email, “Who will protect the First Amendment?”
We can. At least, we can help. As journalism historians and educators we can put in perspective President-elect Donald Trump’s anti-First Amendment, anti-democratic positions. We can fight constitutional ignorance through our instruction, our research, our professional ties, and our public outreach. I learned in my law and freedom of expression classes this fall 2016 of the great unease and conflict students increasingly felt, even in this highly conservative state of Utah, toward Trump’s rights-negating positions. They kept asking me: “Doesn’t he know he’s violating the content neutrality principle, the emotion principle, and the reactive harm principle of First Amendment law, that offense alone is not enough to abridge or punish speech?” “Doesn’t he know that the actual malice standard exists for public officials and figures, that it must be proven, and why it’s essential for democracy?” “Doesn’t he know that the Brandenburg v. Ohio incitement standard means you have to actually evidence intent, imminence, likelihood and unlawful activity to prove actual physical or relational harm?” “Doesn’t he know the First Amendment protects symbolic speech, not just words written or spoken, and that, like it or not, flag burning is the ultimate expression of our constitutional right?” “Doesn’t he know that the First Amendment specifically mentions only one profession—the ‘press’—and why that is?” “Doesn’t he know that without the First Amendment the other nine Bill of Rights amendments are operationally invalid, because we’d have no recourse if those rights are violated?” “Doesn’t he understand democracy?”
I don’t know what Donald J. Trump knows, or willfully ignores. What I do know is that AJHA members have and can answer—via their teaching, research and professional or public engagement—the who, what, why, when, where and how of these questions. I see an important AJHA goal to not only educate our students, but also our fellow citizens, and perhaps especially those people in decision-making, influence peddling, and enforcement positions in our local, state and federal governments, including President Trump. We can help protect the First Amendment, and must, for “democracy depends upon journalism.” Cry out for me Idealism—a daunting, but worthy, task.
