Fedder discusses ABA Law Day theme of Free Speech and Free Press in The Daily Record, May 1, 2019

Law Day 2019: Free press, free speech and a free society

By: Special to The Daily Record Steven K. Fedder May 1, 2019

This year’s Law Day theme – Free Speech, Free Press and a Free Society – is particularly apt more than 225 years since the ratification of the Bill of Rights. It is not by accident that the constitutional guarantees of freedom of speech and freedom of the press appear as the First Amendment. It is, above all others, the underpinning of a free society.

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

The Bill of Rights was written by James Madison to assuage the concerns of the Anti-Federalists that too much power was granted to the federal government by the enactment of the Constitution. Looking at the structure and order of the rights preserved, it is obvious that the First Amendment was critical to protecting the rights guaranteed to the people in Amendments II through IX, and those reserved to the states in Amendment X.

The importance of the free press cannot be overstated. Had Edward R. Murrow not shamed Joseph McCarthy on CBS, would the public have still turned against the witch hunts of the 1950s? Had Walter Cronkite not brought the reality of the Vietnam war into our living rooms, would we not have lost tens of thousands more of our best and brightest? Without Woodward and Bernstein, would Nixon’s crimes have gone unpunished? Without The New York Times’ boldness in publishing the Pentagon Papers, would we have ever understood the breadth and depth of American involvement in unwinnable wars in Southeast Asia?

Today, the twin freedoms of free speech and a free press are under assault. We have elected a president who loves to see his name and visage in the press but at the same time calls it the “enemy of the people.” Any negative coverage draws accusations the news is “fake news.” On Oct. 11, 2017, Mr. Trump tweeted: “With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!” What he was threatening was the license the Federal Communications Commission requires before a broadcaster may use the public airways. Although he has not yet ordered the FCC to review the licenses of NBC (which he considers the worst offender), CBS or ABC, it is obvious that the president does not see the value or utility of a free press, but rather that he sees the press as an avenue to advance his own agenda and personal ambitions.

When asked to comment on threats made against reporters covering the rallies, White House press secretary Sarah Sanders simply replied, “We support a free press, but we also support free speech.” In other words, in her mind and apparently in the mind of her boss, an angry crowd threatening journalists is merely an exercise of free speech.

Even Fox News has drawn Trump’s fire after recently hosting a town hall featuring Bernie Sanders. Trump tweeted: “So weird to watch Crazy Bernie on @FoxNews. Not surprisingly, @BretBaier and the ‘audience’ was so smiley and nice. Very strange, and now we have @donnabrazile?” Perhaps Bret Baier had the right response in replying to Trump’s tweet: “Thanks for watching Mr. President – we’d love to have you on a town hall soon — or even an interview on @SpecialReport —it’s been a while. We cover all sides.” Fox journalists Shep Smith and Chris Wallace have also drawn Trump’s ire for their coverage of the Mueller report’s description of possible obstruction of justice. The president certainly has the right to criticize the news media, but he does not have the right to use the FCC or the Justice Department as a vehicle to suppress press freedom.

Samuel Johnson once wrote: “The liberty of the press is a blessing when we are inclined to write against others, and a calamity when we find ourselves overborne by the multitude of our assailants.” Some years later, Thomas Jefferson reiterated the importance of a free press: “Our liberty depends on the freedom of the press, and that cannot be limited without being lost.”

Justice Black got it exactly right in his concurring opinion in New York Times v. Sullivan – the case in which the Supreme Court held that prior restraint of the publication of the Pentagon Papers violated the First Amendment’s protection of freedom of the press:  “Only a free and unrestrained press can effectively expose deception in government.” Presidents before and after Trump have and will continue to dislike their press coverage, but they cannot be permitted to use their executive powers to stifle dissent.

Steven K. Fedder is an attorney with Fedder & Janofsky LLC and can be reached at sfedder@mdcounsel.com.

Posted on May 3, 2019 at 3:30 pm

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