First Amendment Protections Resilient for Free Speech, Free Press

Freedom of Speech

Freedom to write and speak does not carry any immunity to being criticized for it.

Attempts to throttle journalists and frighten social media platforms have come to light recently, and while worthy of note — and criticism — none is likely to do serious harm to the First Amendment’s protections for our rights to free speech and a free press.

In one instance, multiple news outlets report an effort by supporters of President Trump to raise funds to target and track journalists and cable TV pundits seen as opponents to the White House, aiming to use old social media posts to show bias or prejudice.

In terms of the First Amendment, there’s no legal bar to such tactics. Freedom to write and speak does not carry any immunity to being criticized for it. As a piratical matter, holding journalists responsible for past social media posts or published works would seem limited by the likely small number of reporters and editors who have such embarrassing items in their history — despite what media critics would wish to be the case.

Another effort: A second, unsuccessful attempt by the White House to suspend the access pass of a journalist for what it deemed unprofessional conduct by engaging in a loud exchange with a former adviser during a Rose Garden event.

As in an earlier move to suspend the “hard pass” allowing access to the White House grounds held by CNN’s Jim Acosta, the proposed suspension of Playboy magazine correspondent Brian Karem’s credential through Sept. 14 was deemed by a federal court to be based on requirements too vague to be enforced, while clearly doing “irreparable harm” to his First Amendment rights.

The White House press office should stop trying to punish reporters it deems hostile or critical to send some sort of message to the Oval Office press corps. A more effective approach would be to provide accurate, factual regular briefings, position papers or even tweets to the public through the press on matters of substance, rather than deferring to brief, chaotic shouted press scrums as Trump enters or leaves the White House with Marine One’s engines intentionally roaring in the background.

And finally, there is the ongoing campaign by the administration and press critics that alleged bias against the president by social media outlets such as Twitter, Facebook and Google mean they are violating free speech protections. But such claims run aground on the simple fact that as private companies, those organizations are not subject to First Amendment restraints that prevent government from limiting or punishing any of us — individuals or global powerhouses — for what we say or write.

Some would even revive the long-discredited idea of a government-enforced “fairness doctrine” that could be applied across all forms of news media. Sen. Josh Hawley (R-Mo.) introduced a bill in August that would strip companies of key legal protections unless the Federal Trade Commission ruled them politically “neutral.”

If such legislation ever got through Congress — not likely — First Amendment lawyers would line up to challenge it as unconstitutional and counter to the very idea that we the people have the right to hold and express our own views, particularly when critical of government or public officials.

Again, the appropriate fix here is more speech — not as politically satisfying but more effective in the long run — presenting facts and opinions that allow the news consumer to decide on his/her own.

Current conflicts and criticism around controversial speech and press credibility issues — from Washington to college campuses to protest marches to the political slant of various cable TV outlets — can mask an important truth: The public has a solid commitment to protecting both free expression for us all and a free press’ role on our behalf as a “watchdog on government.”

The 2019 State of the First Amendment survey, by the Freedom Forum Institute, found 65 percent of us oppose restraints on what we post online, even when repugnant, and 72 percent of us support that role of a free press to hold government accountable on our behalf.

Any attempts to limit First Amendment rights deserve scrutiny, but clearly run against the core values held by sizeable majorities in an era when such majorities rarely exist.

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

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