Media law’s ultimate test

Sonja West, a law professor from the University of Georgia whose focus includes the First Amendment, recalls serving on media-law panels at conferences where the speakers outnumbered audience members.

Not anymore.

With the election of a president openly hostile to the news media and vowing to peel back some of their constitutional protections, a panel on “President Trump and Freedom of the Press” drew scores of law professors for an 8:30 a.m. session in San Francisco last week at their organization’s annual conference.

I was there on the panel to provide an in-the-newsroom perspective on the potential threats to the First Amendment from the empowerment of a man who had derided journalists as “liars,” “scum” and “horrible people.” The four law professors around me were there to provide case-law evidence of where Trump could — and probably could not — undermine the right of Americans to learn, through news reporting, what their government is doing.

Overall, it’s a grim picture. One factor working against a transparent government is the actions of the Obama administration, which went to disturbing lengths at times to prosecute people who leaked government information, secretly seize extensive phone records of the Associated Press and stymie reporters’ access to fundraisers.

If there is one clear takeaway from the history of government-media relations, it is that freedoms taken away from one administration are difficult to restore in the next — especially if the successor is as openly leery as President-elect Donald Trump to independent scrutiny.

“I can’t think of anyone in public life, let alone public life at that level, who is so sensitive to criticism,” observed Erwin Chemerinsky, a prominent constitutional law scholar from UC Irvine. He added about Trump: “He shows little understanding of the Constitution and the First Amendment.”

It’s a dangerous combination indeed.

One of Trump’s most blustery pronouncements — that he would “open up” libel laws to make it easier to sue news organizations — is probably his least plausible, according to the law professors. The 1964 Times vs. Sullivan decision, which set the guidelines for modern libel law, is very clear that truth is an absolute defense and that reporting and criticism of public figures deserves a significantly higher level of protection from claims. It’s hard to imagine that even a more conservative court would think otherwise. After all, the strict constructionists who want to interpret the U.S. Constitution at the time of its conception would have to admit that the attacks on American politicians at that time were often far more ruthless and less factually grounded than anything seen in mainstream media today.

Here are other areas to watch:

Freedom of Information Act: As West reminded, the application of this law, which gives all Americans a right to obtain government documents, is highly contingent on the whims of each attorney general. Under President Bill Clinton, for example, Attorney General Janet Reno directed that the presumption was that government records should be available to the public in the absence of a compelling reason otherwise. Conversely, under President George W. Bush, Attorney General John Ashcroft suggested federal agencies should identify reasons to withhold information, assuring them his department would support suppression efforts. How will Sen. Jeff Sessions, Trump’s choice for attorney general, handle this issue?

Whistle-blower prosecutions: This will be an interesting test for Trump. He has at times praised Julian Assange, editor in chief of Wikileaks, whose revelations about Democratic party emails set back rival Hillary Clinton’s campaign. Yet Trump chastises any an all revelations about himself.

Federal shield law: Congress continues to waffle on whether to create a law that would assure journalists of their ability to protect confidential sources. Trump obviously has no regard for the role of a free press in a democratic society. The wild card here: Vice President-elect Mike Pence, who, as a member of Congress, was a leading proponent of a shield law. He viewed it not as a matter of special privilege for the press, but an assertion of Americans’ right to know what their government is doing.

That’s what all these fights are about.

The Obama years: Challenges to press freedom

President Obama had vowed to run the “most transparent administration in history.” But in reality, the Obama White House created unprecedented barriers to journalists seeking information.

Crackdowns on whistle-blowers

Case in point: The Espionage Act of 1917 had been used just three times against alleged leakers of classified information when Obama took office. His administration has pursued prosecutions against leakers under that act at least eight times, most famously in the instances involving National Security Agency contractor Edward Snowden and his disclosure of widespread secret surveillance and Army private Bradley Manning.

Pursuit of phone records

Case in point: A 2012 Associated Press story about a foiled terrorist plot prompted Obama’s Justice Department to secretly seize two months of AP phone records, encompassing 20 phone lines of its offices and journalists, including home and cell phones, as part of a leak investigation. AP CEO Greg Pruitt said the records potentially “provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.”

Federal shield law

Case in point: As a senator, Obama had supported a federal “shield law,” which would assure the right of a journalist to protect the identity of confidential sources. As president, Obama hedged, then ultimately supported the measure — but with a national security exception so broad that many news organizations regarded it as meaningless. Legislation remains stalled in Congress.

Access limitations

Cases in point: The Obama White House has engaged in numerous tug-of-wars with journalists over access. One area of contention was its insistence on giving exclusive access to the White House official photographer at meetings. It also sparred with various news organizations — including The Chronicle — over limitations on coverage of fundraisers for Obama and Vice President Joe Biden.