The First Amendment: A Primer (Part 1)

So, for all of the work that I do, I don’t actually use any of my “formal” training (I could be nominated for a Trump Cabinet seat! Too soon?), but at heart, I’m a wannabe Supreme Court historian just waiting to get out.

Never in modern American history have we had a President-Elect with such a loose view of validity of the U.S. Constitution. Like a majority of voting U.S. citizens, I’m troubled by this, and instead of inundating my Facebook feed with my thoughts on some of these issues, I’ve decided to take advantage of my tiny microphone right here.

Right now? Right now, it’s all about the media, freedom of the press, and The Donald.

Among other enumerated rights, the First Amendment guarantees the freedom of the press.

Screen Shot 2016-11-23 at 8.02.27 PM.png
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. – As adopted in 1791.

On Monday, news broke of a “secret” meeting that the PEOTUS held with several well-known members of popular media — well, everyone but The New York Times. This article in the New Yorker outlines much of what was said at the meeting, and it doesn’t look great.


I’m not going to even touch the “fake” news he’s denigrating (um, hello, Breitbart) right now, but I can’t let his attacks on the networks stand. As someone who has long believed that the development of cable news can be directly tied to the nonsense that we’re dealing with now — mostly because of the demands of the 24-hour news cycle and the fleeting attention of the average American — there is absolutely no foundation to the statement that they are lying. In fact, they were often nicer to him than they were to his opponents, and most of the “attacks” on him were based on words he said on the record. I digress. This is why that’s concerning:

screen-shot-2016-11-23-at-8-13-14-pmThe Free Press clause, as it’s frequently called, protects the right of individuals to express themselves through publication and dissemination of information, including ideas and opinions, without interference, constraint, or fear of prosecution by the government. It’s not only a protected right, it’s considered by the Court to be fundamental (Branzburg v. Hayes).

Right now, the United States needs a free press more than ever, and if Trump’s behavior is anything to go by, the leader of the United States expects a press corps that will kowtow — or lose access. He hasn’t spoken on-the-record to the press since July, and when he does gather them, it is to berate them for such things as printing pictures of him with a double-chin or being “mean.”

Scarily enough, many of his followers respond to these treatment, as the media has been successfully painted as part of the “elite” or the “enemy,” something that wasn’t helped by the Editorial Boards of all but two major newspapers coming out for Hillary Clinton. Thy are part of the “liberal bubble” or the “coastal elite” that were defeated by the election of Trump. This turns more people towards “fake news” or clickbait sites that circulate false stories like a popular DC pizzeria actually being a child trafficking front for John Podesta and Hillary Clinton. It’s a vicious cycle, and it’s being stoked by the man whose first sworn duty is to protect the Constitution.

I’m hopeful that this turns out to be more bluster, but all that we’ve seen so far about Donald Trump says that he cares about one thing: the public appearance of Donald Trump. It’s something that he’s detailed in his books — his reliance on “truthful hyperbole” and his fundamental belief that “all publicity is good publicity.” I’m afraid that we’ve gotten to the point where that isn’t enough — all publicity must be good publicity seems to be the direction where he is going, which is a huge threat to our democratic ideals.

With changes to the Court upcoming (yeah, there’s no way Obama, a con law professor at heart, will think about overruling the Senate on their “advise and consent” requirement) and the President promising a new look at libel and slander laws, there could be great changes on the horizon, and not for the better.

If you want to go deeper into SCOTUS jurisprudence, I’d recommend Near v. Minnesota (1931) for prior restraint, Nebraska Press Association v. Stuart (1976) for sharing information concerning public interest, and New York Times v. Sullivan (1964) for libel laws affecting public officials. 




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