Will President Trump Be Hoisted With His Own Petard In Fighting The Media?
Noted First Amendment lawyer Floyd Abrams, author of a new book, raises this distinct possibility.
Floyd Abrams, delivering introductory remarks at Above the Law’s 2014 conference.
Sometimes President Donald Trump is his own worst enemy. Recall, for example, how “Muslim ban” comments from him and his advisers came back to haunt the Trump Administration when its travel ban got litigated in the courts. There’s a good argument that taking such comments into account when evaluating executive action is improper, but there’s no denying that this did, in fact, happen — that judges used Trump’s comments against him when reviewing his executive order on immigration.
Could a similar dynamic play out when it comes to President Trump’s ongoing war with the press? From the New York Times (which far from “failing,” as Trump suggests, is actually flourishing in his administration):
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[Trump’s] Twitter trail could be a gift to lawyers for the news industry during leak investigations into articles that made the president mad enough to pick up his Android and tap, Tap, TAP!
It could provide great grist for legal arguments that the investigations are less about prosecuting damaging leaks than they are about punishing journalists.
That, at least, is the view of Floyd Abrams, the titan of free speech jurisprudence. He’s best known for successfully defending clients like The New York Times against the Nixon administration’s attempts to stop it from printing the Pentagon Papers, and the Brooklyn Museum of Art against Mayor Rudolph W. Giuliani’s move to cut city support because of an exhibition he called sacrilegious.
As president, Donald Trump is powerful — but as recent weeks have shown, he’s not omnipotent. His powers are checked by the other branches, by institutions, and by the Constitution — including but not limited to the First Amendment, the focus of Floyd Abrams’s new book, The Soul of the First Amendment (affiliate link).
The argument of the book, as explained by the Times, is that the United States leads the world when it comes to protecting freedom of speech. Because of this strong tradition, and because defamation law is a creature of state rather than federal law, Trump won’t find it easy to “open up” libel laws, as he pledged on the campaign trail. (Indeed, as Floyd Abrams previously suggested, the libel laws could actually be used by journalists against Trump.)
That said, President Trump can take some actions to make things harder for journalists (and not just by ruining their weekends through incendiary Saturday morning tweets):
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“My concerns on the Trump level are more in two areas,” [Abrams] said. “One, the potential use of the Espionage Act against journalists reporting on national security-related matters, and the other is leak investigations in which the journalists are called to testify.”
Protecting national security while preserving freedom of speech is a delicate balancing act — as Abrams well knows, having successfully represented the Times in the Pentagon Papers case. For a deeper dive into that subject, check out his book, which contains detailed discussion of this among many other subjects.
P.S. — And for more thoughts on President Trump and the media, plus reflections from Floyd Abrams on his fifty-plus years at Cahill Gordon, see this interesting interview of Abrams by Casey Sullivan for Big Law Business.
Floyd Abrams Sees Trump’s Anti-Media Tweets as Double-Edged Swords [New York Times]
Floyd Abrams on Trump, Fake News, and 53 Years at Cahill [Big Law Business]
The Soul of the First Amendment [Amazon (affiliate link)]
Earlier: Fierce First Amendment Attorney Thinks It’s Time For The Media To Start Suing Donald Trump For Libel
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David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
