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[Freedom of the Press] Fascists really don't like it, but y'know, too bad.
Henroid
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This thread is specially about the freedom of the press and is not a general first amendment rights thread.
Edit - This thread had a stretch of quiet, because things have been crazy. The latest update as of late May is the following quote. Original OP below it.
The first thing I'm going to get out of the way is the definition of the First Amendment we will be working with.
Second thing is, when we talk about the freedom of the press, this is not a general media thread. I think that's what ended up happening to the last iteration of this thread; people spoke about what was happening with media outlets in general rather than focusing on threats to their rights. So for example, if you have a story or feedback on the government acting against a news outlet, that works for this thread. If you have a story or feedback about a news outlet's ratings or latest show, that's not for this thread.
The right to assemble and protest can be covered here for sure, and I think we have a couple threads for specific events / ongoing situations. I would personally throw in that news about police being violent against protesters works for this thread.
Anyway, on to what spurred me to ask the mods about bringing this topic back. This morning, Trump filled his diaper about 'fake news' again. At first, he was just upset about a story NBC ran that he said during a meeting with military leadership that he wanted our nuclear arsenal expanded 'tenfold.' That is scary and shitty and further discussion about nukes can go elsewhere.
But then Manbaby in Chief took it further, making a direct threat of action against news media. Which has everyone sounding the alarm about dictatorship.
I still recommend everyone contact their representatives, Democrat, Republican, or Independent, and ask them to speak against Trump on this. Contact information can be searched for in the links below.
Contact info for the House.
Contact info for the Senate.
Edit - This thread had a stretch of quiet, because things have been crazy. The latest update as of late May is the following quote. Original OP below it.
Styrofoam Sammich wrote: »https://theintercept.com/2018/05/22/lesley-stahl-donald-trump-said-he-attacks-the-media-so-when-you-write-negative-stories-about-me-no-one-will-believe-you/Trump, she said, attacked the media during the meeting, and she asked him why he was continuing to do it after he’d won. Trump responded: “You know why I do it? I do it to discredit you all and demean you all so when you write negative stories about me no one will believe you.”
Obviously not surprising but still
The first thing I'm going to get out of the way is the definition of the First Amendment we will be working with.
I'm pointing this out because lately on the internet there is this crusade to expand on what 'freedom of speech' means (the short of it is 'the right to harass and be an asshole to others'). This is not the place for that. When it comes to free speech in this thread we are exclusively talking about the government, not "someone blocked me on Twitter, MAH RITES."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.
Second thing is, when we talk about the freedom of the press, this is not a general media thread. I think that's what ended up happening to the last iteration of this thread; people spoke about what was happening with media outlets in general rather than focusing on threats to their rights. So for example, if you have a story or feedback on the government acting against a news outlet, that works for this thread. If you have a story or feedback about a news outlet's ratings or latest show, that's not for this thread.
The right to assemble and protest can be covered here for sure, and I think we have a couple threads for specific events / ongoing situations. I would personally throw in that news about police being violent against protesters works for this thread.
Anyway, on to what spurred me to ask the mods about bringing this topic back. This morning, Trump filled his diaper about 'fake news' again. At first, he was just upset about a story NBC ran that he said during a meeting with military leadership that he wanted our nuclear arsenal expanded 'tenfold.' That is scary and shitty and further discussion about nukes can go elsewhere.
Fake @NBCNews made up a story that I wanted a "tenfold" increase in our U.S. nuclear arsenal. Pure fiction, made up to demean. NBC = CNN!
But then Manbaby in Chief took it further, making a direct threat of action against news media. Which has everyone sounding the alarm about dictatorship.
If anyone is wondering "wait, license?" then you'd be correct to question it because there are no licenses involved with any of this. So as per usual, Trump is talking out of his ass. But the point stands that, despite being wrong in how he'd try to levy punitive action against NBC, he still made the threat. I haven't done any rounds to look up any elected officials condemning him for this just yet.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!
I still recommend everyone contact their representatives, Democrat, Republican, or Independent, and ask them to speak against Trump on this. Contact information can be searched for in the links below.
Contact info for the House.
Contact info for the Senate.
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I.e. Trump says stop watching MSNBC vs a law is passed forcing MSNBC to have a 2 hour block of Trump Praise.
Can the president have crazy opinions without it being an official government stance /statement?
Key phrase here:
So an executive action fucking over various news outlets wouldn't be against the First Amendment? Or is that covered elsewhere by restrictions on what executive actions can do?
I think an executive order is a law no? At least in the effect?
I am just wondering if Trump can come out and tweet that the only legitimate media is Breitbart without violating the 1st amendment.
I'm not sure that a tweet is the same as executive action.
It's a bold new world we're living in though.
No. First Amendment applies to all branches.
The President's power only comes from having the ability to enforce laws made by Congress, right? That and being in command of the armed forces.
So if the President started using authority granted by a law to violate the right of free speech, either the law violates the Constitution or the President doesn't actually have that authority.
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Then you get into questions of scope of executive power and possibly Due Process, and arguing about the text of the Amendment.
My answer is I don't know and here is a law review article (pdf) about it http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=2130&context=plr
This is actually not totally clear!
President can play dictator until he's sued about it?
Is this one of those "We never thought we'd have to worry about it" things?
Yep.
Hypothetically, Trump could make an executive order saying NBC and CNN are Nazis (the bad kind), which would almost immediately be challenged by the courts an halted. Very similar to Trump’s immigrant ban.
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I would imagine one would still have to demonstrate harm that a tweet caused, which would seem to be very unlikely, since there would probably be some underlying actual policy directive/executive direction/signed something or other/etc. that would be doing the actual harm.
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Yep! And dependent on the Legislative Branch to stop him from doing it, or the Judicial Branch to cancel it once it's done.
Because the Executive branch is supposed to be implementing laws passed by Congress, and so if an executive order does things prohibited by the First Amendment it is either somehow interpreting the legislation incorrectly or the legislation itself is unconstitutional, right? But this assumes there is some mechanism to deal with the former.
I assume he means the FCC license, but that's still ridiculous.
https://www.fcc.gov/media/radio/public-and-broadcasting#LICENSING
There are, for all intents and purposes, none. Trump could put anything he wanted into an executive order. Up until now, even the worst presidents knew that creating one that flagrantly violated the constitution was a political death sentence and a fast track to impeachment since the legislative and judicial branches would be right there to drop a lawsuit on the desk even before the signature pen stopped moving.
Up until now.
"but no one would try that..."?
The Constitution still exists. There are limits on executive powers, however they aren't always clear cut and often subject to interpretation of the Constitutional language involved. Abolishing another branch of government that's established by the Constitution is a pretty clearly outside the Executive's power, however.
That's just a bog-standard coup attempt. Unless he somehow had the backing of the military he'd be not-president pretty quick. And if he somehow did have the backing of the military to take that action the country as it exists now already wouldn't, so the order would be pointless.
And if Congress is silent on the matter?
Then he doesn't have the authority to do it.
In any case it doesn't matter. First Amendment applies to every government entity. School boards have lost a lot of FA cases for example..
This is not as clear cut as you think it is, is all I'm saying. Schools receiving federal funding is different from the Executive issuing orders.
It applies to everyone. Federal funding isn't the issue. Roy Moore for example got into trouble for violating it as a state judge.
But for a very direct hit: State of Hawii vs Trump.
Granted that's district court but still. This isn't as ambiguous as you think.
Are you citing a case that never made it to SCOTUS for final ruling on the issue that we're dealing with? That's my point. It's a Constitutional interpretation issue that has not been clearly settled.
If you have SCOTUS precedent on an EO violating the First Amendment please do share it!
If it was totally without precedent the court would have not issued that opinion. Do you have anything in support of this idea that somehow one specific thing is somehow immune? Why, exactly, would a random state judge, executive agency, governers, schools, etc be subject but not this?
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I've never said that the Exec is immune. Just that it's not clear cut because the question hasn't made it to SCOTUS level. The question being could an EO be found to violate the first amendment itself, which refers specifically to Congress.
There are a couple more recent FCC cases but they didn't involve EOs and ultimately weren't decided on First Amendment grounds. There is a ton of admin law precedent to deal with when addressing agency actions, for example.
The law review article I linked earlier kinda goes into this issue in more detail.
Roy Moore isn't Congress. Nor are a lot of other places that have gotten hit for FA violations. This is a silly line of argument. Precedent is clear- the FA applies to all government officials.
The linked article in fact deals with a viewpoint that's not precedented. As are most "strict textualist" views (I've made my view on this clear in the SC thread won't rehash that here).
He's threatened to. That's an action.
His threat is also nonsense, which may be his best legal defense of it.
It might not be enough to win but yeah "cover me the way I like or I shut you down" is what was being implied there and that's a clear threat.
Same with the threats against the NFL, the earlier flag burning threats, etc.
We do not have on point SCOTUS precedent regarding a President's EO's directly violating the First Amendment (and more specifically the freedom of the press clause). We can analogize to similar precedents from other cases but the specific question raised in this thread is not clearly answered. That's my point and I think I'm done making it, if you disagree that's cool and I'd love to see something directly on point but I have not found it.
Executive orders stem from the executive authority which is derived from determining how to execute the laws. Such all authority from executive orders is derived from legislative authority either through action or delegation. Since the legislature cannot violate "one" neither can any government agency violate "one". While it could be the case that Judicalial and Executive could violate "one" it would only be insomuch in explicit powers granted to them which are in no relation to the laws enacted by congress or any delegated powers
But your law review doesn't article doesn't really make that argument that there is an actual group of people who believe this. Simply that minority positions have been writing in ways that might potentially maybe challenge the status quo that is "no; EOs cannot".
Not all settled law is the result of SCOTUS decisions. And sure, that could change with a SCOTUS decision but it would be no different than any other time SCOTUS has reversed itself.