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Toledo Legal News - Editorial List Table

 

To Trump on NBC ‘license’ tweet: No!

 

There’s only one appropriate, spirit-of-freedom response to the “Trump tweet” asking when it’s “appropriate” for the government to punish NBC News for a story the president didn’t like:

Never. And yes, the repetition of “appropriate” and the use of italics are for emphasis.

Trump is disputing an NBC report earlier in the day — based on interviews with three officials in the room at the time — that during a July meeting Trump had proposed a massive increase in the country’s nuclear arsenal, which critics immediately pounced on as evidence he was naïve and ignorant of the cost, policy and treaty barriers to such an increase.

“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!” the president tweeted.

No — what’s bad for the country is for a president to threaten a news organization over a story that offended him — and about which it should be noted, the White House did not offer evidence or witnesses to discredit.

NBC, to its credit, also reported that no action was taken on Trump’s alleged proposal to increase by tenfold the aging U.S. nuclear arsenal of some 7,000 warheads. Trump supporters said it was likely he was only raising a “provocative” idea to prompt responses from his military advisers – which they said is in line with his combative management style.

True or disputed, style or substance, there’s no room in any president’s vocabulary for words that would try to put a news outlet out of business for a report. Criticize, call out or condemn — all fair game, and all tactics that Trump has used frequently to counter news accounts he does not like, even during his campaign and his previous careers in reality TV and real estate.

So far, Trump’s most heated attacks on journalists or news operations have been more hot air than real fire. But raising the idea of a direct challenge on news networks’ licenses crosses the line from complaint to a threat of government censorship.

It’s not that Trump has no effective means to get his version of things to the public. His tweets regularly reach millions of people, and he has the “bully pulpit” of his office, which means he can grab headlines by simply deciding to do so.

The tweet on challenging licenses is simply a step too far for the leader of a democratic nation, whether he or one of his surrogates takes on the task. Not that he is the first president to consider doing so: Richard Nixon, deep in the pit of the Watergate scandal, discussed going after the licenses of a station owned by the Washington Post Co. and Newsweek because of the Post’s aggressive reporting. Two challenges were later mounted by individuals close to Nixon, but not directly tied to the White House, according to the Post in a story published after Trump’s Wednesday tweet. But, that story noted, “The difference here is that Nixon talked about the scheme only privately.”

We’ve been down this road before, and rejected the idea of a subservient press beholden to government at any level. In 1798, eight years after adopting the Bill of Rights (which includes the First Amendment) Congress passed the Sedition Act, making it a crime to criticize the president or Congress. Some 20 editors were jailed, but the nation recoiled at the crackdown on free speech and the press, even reelecting one editor, Matthew Lyon of Vermont, to Congress while he was behind bars.

The law faded from the books in 1801, and some historians and First Amendment advocates say the experience “inoculated” the country from such overt attempts to muzzle what the nation’s founders wanted protected as the “watchdog on government.”

George Washington is said to have decided against seeking another term because of harsh press criticism, and John Adams suffered from insults ranging from “balding head royalist” to words we hesitate to use publicly today. Lincoln briefly jailed so-called “Copperhead” editors whom he saw as Confederate sympathizers — but the action is considered a stain on the record of the Great Emancipator, even though he said at the time it was because the editors were encouraging riots and attacks on Union troops.

Going after the business and government licenses of news operations in order to silence critics would echo the strong-arm tactics of the worst dictatorial nations today, something that we see in nations such as Turkey and Eritrea. Joel Simon, head of the worldwide press freedom group Committee to Protect Journalists, coined a word several years ago to describe elected leaders who eschewed jailing or murdering journalists they disliked: a “Democrator.”

Trump has every right to respond to critics and stories he thinks are unfair, inaccurate or insulting. But the “licenses” tweet is not merely unpresidential, but undemocratic and unpatriotic. We’ve made it as a nation since 1776 without the official licensing of printers and publications that was in place under the English king, so let’s not start now.

A suggestion to Trump: Feeling frustrated and “demeaned?” Why not just tweet about it?

Gene Policinski is chief operating officer of the Newseum Institute and of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org, or follow him on Twitter at @genefac.

Gene Policinski, First Amendment Center

Patriotism, respect for flag cannot be ‘ordered’

 

Donald Trump is singing the wrong song about freedom, patriotism and First Amendment values.

Recently, Trump:

Called on NFL owners to fire players who kneel or otherwise protest during the national anthem and display of the American flag

Said fans should stop going to games to punish NFL team owners who fail to dismiss those players

Observed that patriotism should be required of athletes in return for “the privilege of making millions of dollars” on the field.

Trump couldn’t be more off-tune about how to honor our flag, or more off-key on the core values of the First Amendment. It’s also worth noting he’s out of sync with what our own history tells us of failed government attempts to mandate patriotism with a law or an enforced ritual.

At the root of this weekend’s controversy was a decision made last year by one player, former San Francisco 49ers quarterback Colin Kaepernick, to kneel or sit during the national anthem. He said it was a way of protesting continued discrimination “against black people and people of color.” As this season began, a few more players began making similar gestures, some specifically in protest of police shootings of black men. For an as-yet unexplained reason, Trump chose Friday evening to make the protests into a national controversy.

“Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son-of-a-bitch off the field right now. Out. He’s fired. He’s fired,’” Trump told a campaign rally in Alabama. Trump said such protests are “a total disrespect for everything we stand for.”

A chorus of critical replies by NFL owners, athletes and others followed, with Trump swiping back almost immediately on Twitter — all of which sent the bitter debate soaring into the Sunday talk-show circuit and even more visibly onto Sunday’s NFL game fields.

In London, Jacksonville and Baltimore players, joined by Jaguars owner Shahid Khan, locked arms and some knelt during the anthem. By Sunday evening, there were reports that more than 100 players had knelt, sat or otherwise signaled protests during the anthem.

Multiple owners also pushed against Trump’s admonition, saying they support players’ sincere attempts to call attention to serious social ills. New England’s Robert Kraft, described as a longtime Trump buddy, said he was “deeply disappointed by the tone of the comments made by the President.” Kraft said, “I think political leaders could learn a lot from the lessons of teamwork and the importance of working together toward a common goal,” and that he supports players’ “right to peacefully affect social change and raise awareness in a manner they feel is most impactful.”

Those last words echo a 2011 Supreme Court decision that defended free speech even under what most would consider despicable circumstances — using funerals as places of political protest. In writing the majority opinion in Snyder v. Phelps, Chief Justice John Roberts wrote “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

As the Sunday talk shows began rolling, administration surrogates fanned out in Trump’s defense. Treasury Secretary Steven Mnuchin, speaking Sunday on ABC’s “This Week,” was technically correct when he said team owners, as private business owners, could have a rule requiring their players as employees to stand during the anthem. But he continued the administration’s tone-deaf approach to First Amendment values and high-profile athletes’ part as national role models by adding, “They can do free speech on their own time.”

The 2011 Snyder ruling held that those speaking out on matters of public interest should not be punished for finding an effective place from which to be heard.

Our nation was born of dissent — skillfully documented in Stephen Solomon’s “Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech” — and has a long history in which public protest both echoed public sentiment or brought marginalized views into the mainstream consciousness, from Colonial-era protests over taxes to the long battle over slavery and segregation, to women’s suffrage and dozens of other major issues. Even before they were written into our Constitution, the First Amendment rights of free speech, press, assembly and petition have been the engines of social change.

The principle behind protecting unpopular protests was upheld in 1989 in a case that declared that even desecrating the flag itself as a means of protest was beyond the power of presidents or Congress to exact punishment. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” the court said in Texas v. Johnson.

Other administration officials said Trump has a right — perhaps even an obligation — to speak out for the millions of citizens who do not want to see disrespectful conduct toward the flag or national anthem. Trump certainly has a right to defend respect for national symbols. But our rights don’t depend on public sentiment of the moment, game attendance or television ratings.

We’ve been through this kind of faux-patriotism brouhaha before, with authorities trying to mandate respect of the flag or at least the show of it. There are disturbing echoes of McCarthyism’s worst abuses of the power of the presidency to cause people to be fired for expressing dissenting views. There are some who already say there is an unspoken league “blacklist” against Kaepernick, who remains unsigned this season.

Issues of patriotism, national defense and free speech were also strongly contested during World War I. In 1919, Supreme Court Justice Oliver Wendell Holmes declared that, excepting speech that calls for imminent and direct harm to the nation, “we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”

In 1940, in Minersville School District v. Gobitis, the Supreme Court upheld a Pennsylvania law requiring students in public schools to stand and recite the Pledge of Allegiance — even those with religious objections.

In overturning that decision just three years later, after a spate of violent incidents in which authorities attempted to force people to salute the flag, Justice Robert H. Jackson observed — in an opinion released on Flag Day — that “to sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind.”

Dismissing such governmental hypocrisy, Justice Jackson also delivered a stirring defense of the Bill of Rights in West Virginia State Board of Education v. Barnette, writing, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

The next time Trump — who it should be noted, claims Flag Day as his birthday — feels like challenging that free speech “fixed star” in our national firmament, he ought to pause … and just “take a knee.”

Gene Policinski is chief operating officer of the Newseum Institute and of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org, or follow him on Twitter at @genefac.

Gene Policinski, First Amendment Center

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