RIP 1st Amendment? Also Not Likely.
Read the following quote and see if you can guess who said it:
“The media is very unfair. They’re very biased. You look at The New York Times, I mean, the fail — I call it ‘The Failing New York Times’ because it won’t be in business for another, probably more than a few years unless somebody goes in and buys it and wants to lose a lot of money. But The New York Times is so unfair. I mean they write three, four articles about me a day. No matter how good I do on something, they’ll never write good. They don’t write good. They have people over there, like Maggie Haberman and others, they don’t — they don’t write good. They don’t know how to write good.”
BINGO! You guessed it! Good job! Yes, his babbling has become recognizable, hasn’t it? The New York Times, by the way, has been in business since 1851 and is one of the leading newspapers, both nationally and internationally, with the 2nd largest circulation in the U.S., and has won 117 Pulitzer Prizes, more than any other news organization. Doesn’t sound like they are failing, does it?
Since the July 15th failed coup in Turkey, President Erdoğan has severely curtailed the freedom of the press by shutting down or taking over many media outlets and calling for the arrest of more than 100 journalists. Now in the U.S. we have a candidate for president who, in February, said “One of the things I’m gonna do, and this is only gonna make it tougher for me, and I’ve never said this before, but one of the things I’m gonna do if I win… is I’m gonna open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re gonna open up those libel laws. With me, they’re not protected, because I’m not like other people…We’re gonna open up those libel laws, folks, and we’re gonna have people sue you like you never get sued before.” Ah yes, Trump does seem to have an affinity for suing and being sued, doesn’t he? And no, he certainly is not like other people, but he is not above the law, contrary to what he may believe. Since his bizarre statement in February, he has banned nearly a dozen media outlets, including The Washington Post, POLITICO, BuzzFeed, The Huffington Post, Univision and The Des Moines Register, and now is threatening to ban the New York Times from his rallies and events.
The 1st Amendment of the U.S. Constitution plainly states:
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.
Now Trump seems to think that as president he will have the power to simply negate parts of the United States Constitution he doesn’t like, as though the presidency bestows those powers. It does not. The Constitution is notoriously difficult to amend, and the process is not accomplished by one man’s stroke of the pen. But, with the situation in Turkey fresh in my mind, and given that both Trump and Erdoğan are both equally thin-skinned and vindictive toward those who criticize them, I began to wonder if a similar thing could happen here in the U.S. Could a hypothetical President Trump declare a ‘state of emergency’ for some reason, contrived or real, and essentially shut down those media outlets that criticize him? The New York Times has an interesting article showing how a purge similar to the one in Turkey would look in the U.S. It is short and well worth the read.
The U.S. Constitution explicitly provides some emergency powers:
- Congress may authorize the government to call forth the militia to execute the laws, suppress an insurrection or repel an invasion.
- Congress may authorize the government to suspend consideration of writs of habeas corpus “when in cases of rebellion or invasion the public safety may require it.”
- Felony charges may be brought without presentment or grand jury indictment in cases arising “in the militia, when in actual service in time of war or public danger.”
- A state government may engage in war without Congress’s approval if “actually invaded, or in such imminent Danger as will not admit of delay.”
Throughout history, there have been attempts to regulate freedom of speech in the U.S.
- In 1917, Congress passed the Federal Espionage Act. This law prohibited all false statements intending to interfere with the military forces of the country or to promote the success of its enemies. In addition, penalties of up to $10,000 and/or 20 years in prison were established for anyone attempting to obstruct the recruitment of men into the military. In 1918, another law was passed by Congress forbidding any statements expressing disrespect for the U.S. government, the Constitution, the flag, or army and navy uniforms. In the first case to challenge these two laws, Schenck v. United States, Supreme Court Justice Oliver Wendell Holmes held that Mr. Schenck was not covered by the First Amendment since freedom of speech was not an absolute right. There were times, Holmes wrote, when the government could legally restrict speech.
- Another important free-speech case took place after World War II. It was only a few years after thousands of American soldiers had given their lives to defeat Adolf Hitler and the Nazis. Arthur Terminiello was speaking before an audience in Chicago. His message was hate. He said that Hitler was right in what he did. He claimed that Democrats, Jews, and communists were all trying to destroy America. Arthur Terminiello was later arrested, tried, and convicted for disturbing the peace with his provocative harangue. Like Charles Schenck 30 years earlier, Terminiello appealed his case to the U.S. Supreme Court, Terminiello v. Chicago, the Supreme Court reversed Terminiello’s conviction. Justice William O. Douglas wrote that “it is only through debate and free exchange of ideas that government remains responsive to the will of the people….” Justice Douglas stated that in a democracy free speech must occur even if it causes disputes, unrest, or “stirs people to anger.” Thus, according to Justice Douglas, “freedom of speech, though not absolute, is protected against censorship or punishment unless shown likely to produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance or unrest.”
The National Emergencies Act, enacted September 14, 1976, is a United States federal law passed to stop open-ended states of national emergency and formalize the power of Congress to provide certain checks and balances on the emergency powers of the President. It requires the President to specifically identify the provisions activated and to renew the declaration annually so as to prevent an arbitrarily broad or open-ended emergency. In all such cases, the government must continue to act within the limits of the law and constitution.
So, could it happen here? Could a Donald Trump sitting in the White House declare a ‘state of emergency’ and put a proverbial muzzle on the media? Under normal circumstances, it would seem the answer is “no”, however where Trump treads, circumstances tend to be anything but normal. His entire campaign has been based on creating fear and unrest … something he has proven to be very good at. Bottom line, I think that there are enough Constitutional safeguards in place and enough very capable justices on the Supreme Court that a situation similar to that in Turkey is highly unlikely. Still, the best way to ensure that our Constitution does not get trumpled on is to keep Trump out of the White House!