President Trump vs. the Press

Episode Notes

Transcript

Lawyer 2 Lawyer – Law News and Legal Topics

President Trump vs. the Press

03/17/2017

David A. Schulz: Well, I would agree with Floyd, Floyd Abrams certainly, I think he is a very serious threat on a number of fronts, not the least of which is just his ability to shut off information to the press, which is information we need for citizens to be able to vote, for our democracy to function. He can have a great impact in terms of the flow of information to people.

Howard Cooper: I have to say when we start talking about news that is called false news or alternative facts or fake news, the consequences for that, if you stop and think about it, for libel actions are really very profound. We have a president that’s just accused the former president of criminal activity, in ordering his phones tapped, without apparently a shred of evidence. And what does that mean in terms of exposure for defamation from a guy who says that he really wants to loosen the reins on libel actions and who himself apparently has a history of using libel lawsuits to kill the actions and speech of others.

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J. Craig Williams: Temporarily.

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J. Craig Williams: Well, Bob, in recent months President Trump has been very vocal about his disdain for the press and labeling certain news outlets fake news. In retaliation for contentious press relations the White House has blocked a number of news organizations recently, including CNN, The New York Times, Politico and the LA Times from attending off-camera press briefing with the Press Secretary Sean Spicer back in February 24.

Bob Ambrogi: Well, and he has also threatened to toughen libel laws and clamp down on reporting in other ways so that the question really remains how far will President Trump go in trying to curtail press participation and how far really can he go.

Today on Lawyer 2 Lawyer we are going to take a look at President Trump, the news media and the First Amendment with a couple of guests who are experts in this area.

First of all, let me introduce David A. Schulz. David is Senior Research Scholar in Law and Floyd Abrams Clinical Lecturer in Law at Yale Law School, Co-Director of the Media Freedom and Information Access Clinic there, is also a Partner in the law firm Levine Sullivan Koch & Schulz, a national trial and appellate practice representing news and entertainment media in defamation, privacy, newsgathering, access, intellectual property and related First Amendment matters.

He specializes in media law, First Amendment, and intellectual property and has represented a broad range of media clients, including international newswire services, national and local newspapers, television networks and station owners, magazine and book publishers, cable news networks and Internet content providers.

David Schulz, welcome to Lawyer 2 Lawyer.

David A. Schulz: Great. Thank you. Hi Bob. Hi Craig.

J. Craig Williams: Well, Bob, our next guest attorney is Howard Cooper, a Founding Partner of Todd & Weld LLP. Mr. Cooper’s experience includes over three decades of extensive trial practice in state and federal courts, before administrative agencies and licensing boards and in arbitration in the areas of complex civil disputes and criminal defense.

Howard regularly handles significant civil rights and First Amendment matters, which are often of public significance and hopefully we will discuss some on the show.

Welcome to Lawyer 2 Lawyer Howard Cooper.

(00:05:04)

Howard Cooper: Nice to be with you.

Bob Ambrogi: I suppose I should say in the interest of full disclosure here that in my own day job I represent the news media as the executive director and a lobbyist for the newspaper industry here in Massachusetts, so I certainly have a dog in this game I guess to some extent.

J. Craig Williams: Well, Bob, in the interest of full disclosure on the other side, I have also sued newspaper companies, so here we are.

Bob Ambrogi: There we go. Well, just before President Trump took office, Floyd Abrams’ First Amendment lawyer in a speech said that then President-elect Trump may be the greatest threat to the First Amendment since the passage of the Sedition Act of 1798. Just before he took office, the Committee to Protect Journalists took some unprecedented step of passing a resolution declaring him an unprecedented threat to the rights of journalists.

David, before we get into some of the specifics, just on a broad basis, what’s your perspective on the extent to which President Trump is a threat to news reporting as we now know it in the United States?

David A. Schulz: Well, I would agree with Floyd, Floyd Abrams certainly, I think he is a very serious threat on a number of fronts, not the least of which is just his ability to shut off information to the press, which is information we need for citizens to be able to vote, for our democracy to function. He can have a great impact in terms of the flow of information to people.

Then on another front, it’s not exactly a legal front, but I think is also disturbing and problematic and potentially of great impact, is just the way that he is systematically going about trying to destabilize the press, trying to delegitimize it, attacking the press as fake. I think that has a huge impact, because there are many people who follow him. He says something like 3 million people cast illegal votes and immediately 25-30% of the people believe that, even if it’s totally baseless.

So I think that there are great concerns that we should all have as citizens in terms of how our country is going to function and just how democracy works when you have someone in office who both has the capacity to limit the flow of information and to threaten the credibility and the reliability of the press.

J. Craig Williams: What about the fringe that’s out there putting fake news out, there’s been some discussion about Pizzagate and some of the other social media scams that go around, and I am not saying that that’s one, but I don’t know what it actually falls into.

David A. Schulz: Well, I mean, certainly, if you want to talk about fake news I mean there certainly is I think something that could be called fake news. I think you have to be very careful about what the definition of it is, but certainly people who intentionally put out misinformation, false information knowing that it’s false, with an intent to deceive people and particularly an intent to affect their view of their government, I think is a real problem.

There’s always been kind of a fringe press out there. There’s been people who are on the political fringe, John Birch Society and others who have had their own methods of communication, but they have never before been able to reach a mass audience in the way that the Internet and social media allow today.

And there’s always been kind of crazy news, the National Enquirer and papers that you see on grocery lines when you are leaving, people kind of understood that you have to take things there with a grain of salt.

So another thing that’s happened with the Internet is you have eliminated that ability to differentiate between what might be reliable and what you need to be suspect of, so that a lot of information now is floating around that comes from fringe areas and that people don’t really know how to evaluate and judge and that’s created huge problems.

Howard Cooper: Just to pick up on with what David says, I think it goes beyond the dangers presented by sources on the Internet or otherwise the fake news, fringe groups, et cetera, I actually think that what has come from our now president, he has given license to some of these fringe groups and individuals to say things publicly, whether via the Internet or in person or by telephone that are extreme, and in certain instances can actually go beyond permissible speech into hate speech or incitement of others.

(00:09:48)

I have just finished a matter here in Massachusetts in which I was involved on behalf of the American Civil Liberties Union involving a local Islamic group that pursued a cemetery in one of our central Massachusetts towns and ran into opposition in the form of flyers in anticipation of public meetings that they were bringing Sharia Law to the town, really whipping up a frenzy, which resulted in some very ugly public hearings, where it was really questionable whether some of the things crossed the line in the context of simply a community wanting to establish a cemetery to bury their dead.

And I believe that one fall out from this injection of fake news and inflammatory rhetoric coming from our president is to incite that type of behavior.

Bob Ambrogi: One thing I was wondering thinking about this show today, Howard, I know that one of the areas of your practice is libel law and you have famously won some significant verdicts here in Massachusetts and elsewhere, including a 2.1 million dollar verdict against the Boston Herald on behalf of a Massachusetts judge in a libel case. And of course a core element of libel is that something was not true. So from the perspective of a libel, does anything that President Trump is saying about the press ring true to you.

Howard Cooper: I am as fearful as everybody else about what President Trump is saying. I have to say, when we start talking about news that is called false news or alternative facts or fake news, the consequences for that, if you stop and think about it for libel actions are really very profound.

We have a president that’s just accused the former president of criminal activity, in ordering his phones tapped, without apparently a shred of evidence. And what does that mean in terms of exposure for defamation from a guy who says that he really wants to loosen the reins on libel actions and who himself apparently has a history of using libel lawsuits to kill the actions and speech of others.

I note that before he was elected, then candidate Trump announced, I think it was while he was addressing a crowd at Gettysburg, although I may have that wrong, but all of the women who dared to come forward to say that he had molested them in one form or another would be on the receiving end of a libel suit.

I think according to the president’s rhetoric, we are in uncharted territory; of course, I have great confidence in our legal system to maintain the rules and standards that we have all dealt with for a long time now.

J. Craig Williams: What realistically is legal help even available for what President Trump says? I mean, what is the remedy? Is there one, other than waiting for four years?

Howard Cooper: I think the remedy is to make sure that all of the very fine media outlets that are devoting tremendous resources to investigate and correct the misstatements and untrue statements of the president that they — we make sure that they have access to the pressroom, that they are not excluded because of their viewpoint or the content of their publications, which would be impermissible and that they continue to report. And hopefully that will result in cabining the president in in some fashion. I say it only half seriously, but I think President Obama would have a pretty good libel suit against him.

David A. Schulz: Yeah. I defend libel cases a lot and most of my clients are news organizations and come from a culture that I have worked in for three decades now, where news organizations don’t bring libel lawsuits, even when they have concerns that they are being maligned, because they don’t want to make bad law, they don’t want to suggest that the court should be the arbiters. There’s always been a great belief that the answer to false speech is more speech.

But I think things have changed. I think the Internet has changed how information is distributed, and even Floyd Abrams, who you quoted at the outset, who is probably the Dean of the First Amendment Bar of the United States, suggested back in November in that same speech that maybe some journalists needed to think about becoming libel plaintiffs when the president is accusing them of making things up or misrepresenting information.

I agree with Howard, I think President Obama would have a pretty good libel lawsuit. Even as the ultimate public official, it’s probably that rarest of rare instances, where someone has been accused of a crime with no basis apparently.

J. Craig Williams: Well, it seems like that would be liable per se, wouldn’t it?

David A. Schulz: Exactly.

(00:14:57)

Howard Cooper: The real issue is can you overcome the First Amendment defense to a libel claim, because back in the 1964 case of New York Times v. Sullivan, the Supreme Court said even false speech, when you get something wrong and you are talking about a public figure on matters of public concern, there has to be some breathing room. So you don’t have a claim even if it’s wrong unless you can prove that the person who said it knew it was wrong or had serious doubts or acted so recklessly with the truth as to have a basis for a claim.

But I think even in this context, with a public figure, a public official like Barack Obama, if someone just makes up a fact and puts it out there on the basis of no credible evidence, something that’s clearly defamatory, it would be an interesting lawsuit.

Bob Ambrogi: Last night watching the CBS News, Scott Pelley asked a question of Leon Panetta, is it time to begin questioning our president’s rationality. I thought that was a pretty striking moment when the anchor of the CBS News would ask a question like that.

But one of the things that President Trump has said is that he does want to open up the libel laws “so that when they write purposely negative and horrible and false articles, we can sue them and win lots of money”. How far could President Trump go in revising the libel laws or are they pretty solidly written in Supreme Court precedent at this point?

David A. Schulz: I would love to hear Craig or Howard talk about that since they brought libel lawsuits, because as someone who has defended libel lawsuits, I think it’s just another example of the president talking about things he really doesn’t know anything about. The major constraints on liable plaintiffs these days are the First Amendment restrictions which the president can’t change.

Bob Ambrogi: Howard, what’s your thought on that?

Howard Cooper: So let me say as a lawyer who works mostly, but not completely, on the plaintiffs’ side of these cases, I agree with David that the bedrock principles of the First Amendment from New York Times v. Sullivan and beyond are very clear and frankly even as a plaintiff’s lawyer very appropriate.

I have represented judges and other public officials in libel cases and they are held to a high bar of having to prove actual malice by clear and convincing evidence and they should be. And I think the First Amendment should provide that protection because people should have the right to criticize, comment on, and question public officials.

Having said all of that, I don’t think that President Trump has an understanding at all of the law when he says that it would be great to be able to bring lawsuits and prove that people had no basis for writing what they wrote and did it intentionally, et cetera. By coincidence, that is somewhat the standard already when it comes to public figures and public officials.

Again, you have to prove that someone, either with a knowing or reckless disregard for the truth published something, or outright fabricated. But he better be very careful what he wishes for, because based upon what I think we have all seen, the individual who in the most high profile way possible, using the bully pulpit of the presidency of the United States, who has libeled someone, at least based on what we currently know, seems to be him.

J. Craig Williams: We need to take a short break before we continue with the show. We will hear a few words from our sponsors and we will be right back. Please stay with us.

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(00:19:49)

J. Craig Williams: Welcome back to Lawyer 2 Lawyer. I am Craig Williams and with us today is attorney David A. Schulz, a Senior Research Scholar in Law and Floyd Abrams Clinical Lecturer in Law at the Yale Law School and Co-Director of the Media Freedom and Information Access Clinic, as well as Attorney Howard Cooper, Founding Partner of Todd & Weld LLP, and my co-host Bob Ambrogi. We have been discussing freedom of the press under a Trump Presidency and how the Constitution plays a role in it.

Howard, is the Constitution going to give us any comfort in trying to corral President Trump’s wild statements, I guess, what else are you going to call it?

Howard Cooper: Well, I certainly hope so. I think that the law and the rule of law, including the Constitution, and especially the Constitution, is all of our best hope for corralling in, not just his actions, but some of this more outrageous speech.

I think it highly unlikely that anybody would actually file a libel lawsuit against the President, but we are in such uncharted territory, I suppose that anything is possible. And I say that because what’s coming out of his mouth is so unpredictable and appears to be so unsupported that sooner or later he really is going to hurt somebody.

I think that President Obama with his profile, it might be hard-pressed to say that he has been damaged by anything that’s said by President Trump, but at some point he is going to be going after private citizens with who he disagrees, and I am hoping this doesn’t happen and he leaves himself exposed if he acts in the same manner and publishes the same type of statements without any basis for them.

Bob Ambrogi: Other than libel, in what ways could President Trump go after the news media legally, David, that that they might need to be concerned about? I mean one piece of speculation I have seen is that perhaps a Trump administration would consider prosecuting journalists under the Espionage Act, something that was done once I think against the news media organization back in 1942. Is something like that realistic or are there other legal avenues that President Trump might pursue against the news media that could curtail their freedom of reporting on him?

David A. Schulz: Sure. Well, there are certainly things he could do and that would be very problematic, including potentially bringing Espionage Act claims. And just to correct you, no press has ever been prosecuted under the Espionage Act. There was a grand jury investigation that started during World War II that was shut down very quickly by the Roosevelt administration, because their concern was that proceeding with some sort of a claim would be more damaging in terms of what it would reveal than just holding their fire. So there has never been a news organization or a reporter charged with a violation of the Espionage Act, but it’s a real threat.

The law is very antiquated. It was passed originally during World War I. It goes back to 1917. And it has a very vague and ambiguous prohibition against anyone who has unauthorized access of national security information from disseminating it to anyone, reasonably knowing that it could be used against the United States or for the benefit of a foreign country. So it’s very vague.

And I think certainly organizations like WikiLeaks or others who are getting classified information and releasing it, in theory could be prosecuted, as could Scott Shane at the New York Times or anyone else who reports information that’s classified.

I think for the last — since 1917, almost a century, no reporter has ever been prosecuted because presidents and administrations understand the significant First Amendment concerns that creates, and I think if the Trump administration were to try that, there would be First Amendment defenses that could be brought, depending on the facts and how the information was obtained. But it’s one way he could try to go on the offensive and chill reporters from reporting on national security matters.

J. Craig Williams: What’s the relationship or what’s the legal framework around President Trump and his spokespeople excluding media from certain press events? Is there a right to do that? Does the media have a right to be there? What are the constitutional outlines that we need to think about in the framework of what happened?

David A. Schulz: Yeah. I do think that’s probably more of an immediate concern than an Espionage Act prosecution is the way they have tried to kick out reporters who they don’t like. Candidate Trump did it repeatedly during the campaign. He would hold press events in public places and exclude reporters from BuzzFeed or the New York Times or whatever entity he was upset with at the moment.

(00:24:58)

As President there are a great deal many more legal restrictions on his ability to do that. So for example, no one has a constitutional right to a press pass, but once a reporter becomes a credentialed White House reporter and has a press pass, the President is not permitted just to exclude them because they don’t like their coverage. That issue was litigated during the Nixon administration when he tried to withdraw the credentials of a reporter for The Nation Magazine, and the Court of Appeals and the District of Columbia said very clearly that to do so raised First Amendment concerns. If he was doing it in retaliation for reporting that would be a serious constitutional problem and that there also were due process rights that would come into play if they tried to remove a reporter’s credentials.

But even short of that, the press briefing room I would suggest is a public forum for purposes of the reporters who are credentialed to be there. It has historically been made available to them to ask questions of the Press Secretary, and if they were to exclude reporters who were credentialed from a press briefing in the pressroom, I think there would be definitely a First Amendment claim that could be brought to prevent them from doing that, if the reason for doing that again was that they don’t like the reporting.

So I think there are legal restrictions on what the President can do, but he has certainly been showing every willingness to test those and to push the boundaries in his effort to control the message that reporters are putting out and to chill the speech of certain news organizations. It’s quite disturbing.

Bob Ambrogi: Well, we are just about at the end of our program and I do want to give each of you time to give your closing thoughts before we wrap up the show, and in the course of doing that if you would also like to tell our listeners how they can follow up with you, we would appreciate that as well.

So Howard Cooper, why don’t we start with you?

Howard Cooper: Sure. Thanks Bob. Well, I am a partner here in Boston at Todd & Weld. I can be reached via email at HYPERLINK “mailto:[email protected]”[email protected]. I am always glad to talk with anybody about First Amendment issues, First Amendment matters.

My closing thoughts are consistent with what I said with my opening comment. I think we are in uncharted territory. I think that there are reasonable tools for the president to use in a neutral way if he wants to accomplish legitimate ends. But when you start attacking journalists because of what they publish, excluding them from the pressroom based upon what is clearly viewpoint discrimination or acting in some other arbitrary way, he is going to run into problems.

God knows it would be a lot worse if he does the same thing by selecting out particular journalists to try to initiate a grand jury proceeding against them. It’s just outright violative of the First Amendment in an effort to chill speech that he doesn’t like. I hope we are not headed there, but I fear we are.

Bob Ambrogi: Thank you very much Howard. And David Schulz, your closing thoughts.

David A. Schulz: Sure. I would echo a lot of what Howard just said and maybe to put out one other issue on the table. I think beyond just the potential for criminal prosecutions or access fights with reporters, yanking of credentials, one really significant concern is the way that this administration from day one has started withdrawing information from the public on websites, taking down climate change information and various things like that.

The clinic that I run at Yale Law School, the Media Freedom and Information Access Clinic, exists to provide pro bono services to people who want to bring litigation to compel the government to release information or to promote government accountability. You can find more about the clinic online at MFIA Clinic, if you do a Google search, or you can follow me on Twitter, I am @LSKSDave.

Bob Ambrogi: Well, thank you very much. We have been talking today with David A. Schulz, Partner at the firm Levine Sullivan Koch & Schulz in New York and a Senior Research Scholar in Law and Floyd Abrams Clinical Lecturer in Law at Yale Law School; and also with Howard Cooper, Partner at Todd & Weld in Boston. Thanks to both of you for taking the time to be with us today.

David A. Schulz: My pleasure.

Howard Cooper: Thanks Bob. Thanks Craig.

J. Craig Williams: You are welcome. And Bob, just before we close we sometimes will comment ourselves on what the situation is that is being discussed in the podcast, and certainly you have expert qualifications to give us a short little quickie on what you thought.

(00:29:47)

Bob Ambrogi: Well, again, I mentioned during the show I think how struck I was last night watching a network news anchor in a way, indirectly perhaps, question the rationality of the sitting President of the United States. I am deeply concerned in the same way our guests expressed concerns, and I do have faith that the First Amendment and the legal system will persevere over the situation we are seeing right now.

So how about you Craig, do you have any thoughts on that?

J. Craig Williams: I do. And I completely agree with everything that’s been said so far in the podcast. I note uniformly the discussion that I have had with other First Amendment lawyers and lawyers in general is that this type of behavior has been condemned. I have not been able to find anyone, perhaps that person exists on Trump staff, but I have not been able to find an attorney to give me a rational explanation or support the current situation.

Bob Ambrogi: Yeah. That about does it for this week’s show. On behalf of everybody at the Legal Talk Network, thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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