Exploring the 1st Amendment in a time of Trump-MSNBC showdowns

Former Gawker chief Nick Denton addressed the media outside the Hulk Hogan trial in a scene from ‘Nobody Speak.’
(Eve Edelheit/AP/Sundance Institute)

Many Americans felt anxious after the election of Donald Trump. But few harbored the dread that Brian Knappenberger did.

The documentary filmmaker, who specializes in government suppression and surveillance stories, was in the final stages of editing “Nobody Speak,” about Hulk Hogan’s crippling lawsuit against Gawker and the 1st Amendment generally. What had been a sobering but manageable tale of the free press suddenly became something different.

“I felt a chill,” Knappenberger said in an interview. “The Trump scenes [in the film] went from cautionary to ‘Oh… The guy who talks about opening up libel laws and who berates the press every five minutes is now in charge of the executive branch.’”

An obscenity or two may escape the lips of many who covet a free press these days. New threats seem to materialize by the moment. For every important piece of journalism comes a doublespeak term, like “fake news,” meant to muddy the line between propaganda and uncomfortable facts.‎ Each news-nourishing leak seems to arrive with a rattle of prosecution. Attempts by reporters to do their jobs yield changes in the unspoken rules that aid them.

Donald Trump answers questions at the National Federation of Republican Assemblies on Aug. 29, 2015, in Nashville, as seen in the documentary "Nobody Speak: Trials of the Free Press."
(Mark Humphrey / AP Photo)

And for every legitimate scoop or commentary, there is talk of lowering the threshold on libel and defamation laws, which since the landmark 1964 Supreme Court ruling of New York Times Co. vs. Sullivan — it set an extremely high bar for public figures seeking damages from media outlets — has been ironclad.

In recent days alone, the coal-mining magnate Bob Murray sued John Oliver, HBO, Time Warner and others for defamation over a “Last Week Tonight” commentary in which Oliver took aim at Murray’s safety record and made a Dr. Evil-related quip. Sarah Palin filed a defamation lawsuit against the New York Times over a June 14 editorial that inaccurately said there was a link between an image distributed by her PAC and the shooting of then-Arizona Rep. Gabby Giffords.

And on Thursday, Donald Trump Tweeted disparaging remarks about MSNBC hosts Mika Brzezinski and Joe Scarborough, prompting strong condemnations even from within his own party.

All these issues run underneath “Speak,” which Netflix began streaming in late June after its acclaimed premiere at the Sundance Film Festival. The movie serves as a kind of dark companion piece to 2015 Oscar best picture winner “Spotlight.” If that fact-based film, about a Catholic Church scandal and cover-up in the early 2000s, shows what a free press can do, “Nobody Speak” documents how easily that press could now go away — how future “Spotlights” could never come to pass.

Framed (and viewed) against a backdrop of Trump-era media hostility, “Speak” begins with Hogan suing Gawker in Florida over the publication of a sex tape. The litigation, it turns out, is being secretly financed by the Silicon Valley venture-capitalist Peter Thiel, who has a personal grievance with the site. The high-powered lawyers he hires succeed in winning a $140-million judgment that in turn forces Gawker to shut down.

The movie continues down a winding but scary path to a similarly cloaked-in-mystery acquisition of the Las Vegas Review-Journal. That unknown buyer ends up being Sheldon Adelson, whose attempted string-pulling eventually leads many reputable journalists to leave the paper.‎ The film ends with Trump’s inauguration and an unflattering look at his attitude toward the press in his first months in office.

Though Thiel and Adelson are activist conservatives, in both cases, Knappenberger believes, the issue is not politics as much as methodology. What troubles him is how these instances pave the way for the hyper-wealthy to seize media pulpits before the public can even realize what they’ve done.

“I think what both Thiel and Adelson did was give a kind of roadmap,” said Knappenberger. The director was having lunch in the country’s media capital, the biggest news companies within a two-mile radius. Fears that these journalists will be deterred from their jobs — legally, politically, culturally, financially — hung heavy in the air.

“There have always been private figures who try to get a hold of media outlets and try to shape coverage. But you know who they are,” he said. “What’s egregious here is the secrecy. They’re two very dangerous blueprints.”

Nor does the idea of Gawker as an outlier offer much solace. Yes, the Nick Denton-run site flirted with the bounds of good taste and, some believe, with journalism ethics. But experts note that assaults on the free press rarely begin at the center. They start at the margins, with outlets that make some uncomfortable, then metastasize inward.

“The reason to save Gawker is not because Gawker was worth saving,” the lawyer and 1st Amendment champion Floyd Abrams says in the film. “The reason to save it is we don’t pick and choose what sorts of [speech] are permissible. Because once we do it empowers the government to limit speech.”

Previous threats

Alarmism about the state of a free press is often accompanied by a reflexive self-reassurance. It can’t be this bad, we think. The republic has weathered worse crises and emerged intact.

History in one sense bears this out. U.S. leaders have often sought to impose restrictions on the press. Abraham Lincoln shut down hundreds of newspapers during the Civil War, even ordering a military occupation of the New York World.

Under Franklin Roosevelt during World War II, all news was vetted first by the government’s Office of War Information, whose code, John Steinbeck wrote, made it so that all reporters were “a part of the war effort. We went along with it, and not only that, we abetted it.”

Richard Nixon had a prickly relationship with the press from the outset — that 1962 line “You won’t have Nixon to kick around anymore, because, gentlemen, this is my last press conference” — culminating in his fierce battle nine years later to stop the publication of the Pentagon Papers.

Barack Obama prosecuted eight whistleblowers under the Espionage Act, more than all other presidents combined. He operated under a cloak of opaqueness so thick the heads of dozens of journalism groups came together to write a letter saying it amounted to censorship.

In each of the previous examples, the threat — both to America and to the press — passed. And while media complicity with the U.S. government is often alleged and sometimes accurate, anyone looking at coverage that followed these cases would be hard-pressed to claim a long-term stifling of press freedoms. In many instances, in fact, they led to some of the country’s best journalism.

But a big factor distinguishes the present day: None of these past suppressions came from a leader who seemed to fundamentally believe reporters had no right to do their jobs. Trump has called the press “the enemy of the American people,” regularly belittles it, makes noise about prosecuting it and has suggested he’d like to neuter it.

“The real threat here is that we’ve never had a president who’s been antagonistic not only to the media but to the underlying principles of the free press,” George Washington University professor Jonathan Turley, a 1st Amendment scholar and frequent commentator on these issues, said in an interview. “Donald Trump is talking candidly about chilling the media; he’s quite open about what he’s trying to achieve.”

Trump has made one of his rallying points the “opening up” of libel and defamation laws. The implication is that these laws would take a turn toward standards in Europe, where the burden lies with the defendant instead of the plaintiff.

Like many legal experts, Turley believes actually overturning Sullivan would be very difficult. Even if the president would follow through and press for legislation or bring a suit, the Supreme Court would likely push back; freedom of the press has been one of the rare issues not to divide the Court along ideological lines. And Sullivan is considered a gold standard of Supreme Court rulings.

Except the danger goes beyond a specific judicial overhaul.

With a shift in recent years among swaths of America to see large news outlets as a mouthpiece of the left, a restriction of the press is viewed not as an abhorrence but a political win.

“There’s a danger this [free press] issue has become hyper-partisan,” David Folkenflik, the media correspondent for National Public Radio and a voice in “Nobody Speak”, said in an interview. “The effort has to been to de-legitimize the press as simply another actor in a great political drama, one that has no interest in anyone but itself.”

(In “Nobody Speak,” disturbing scenes pop up of Trump supporters intimidating reporters to this effect. This dynamic was also in evidence Thursday in the reaction to the Trump-MSNBC square-off by on-air White House defenders, who flipped the script by saying the media was picking fights with Trump for its own vindictive or ratings-based reasons.)

And that, in turn, could help set up Trump-era muzzling. A scapegoated media combined with a president that wants to erode press freedoms makes lawsuits more palatable. And lawsuits, of course, don’t need to succeed to be effective. It merely takes the threat of action against traditional outlets — already reeling from digital competition and advertising slowdowns — to have a chilling effect.

“The margin of profitability has never been slimmer and collateral threats like litigation have never been more active,” Turley said. “This is a perfect storm in which I think the result can be a lot of self-censorship.”

These factors were already in evidence in the Food Lion case against ABC for the network’s undercover investigation. In that instance, back in the 1990’s, even a seemingly favorable appeals-court ruling that the media could only be held liable for trespass caused many outlets to downsize their investigative divisions.

The Murray-Oliver court, in West Virginia, has yet to hear arguments. But the rights of a satirist to go after a public figure has been as much a fixture of American public life as a late-night monologue. The idea that a talk-show host could now readily be sued by a rich person who doesn’t like what’s being said about them is enough to cause shudders among anyone who believes in the sunshine-disinfectant proposition of modern journalism—and make those personalities less inclined to tackle these subjects in the future.

Veteran journalist David Gregory noted the president is also blurring lines at a time when the very idea of truth has been undermined.

“Many administrations campaign against the press and argue the news media is some combination of elitist liberals and a leftist conspiracy,” the CNN commentator said in an interview. “But what’s different here is Trump creating an alternative reality and a set of facts that is demonstrably not true. And it’s happening in an environment where people can already create their own zones of information, which I think is what really makes it dangerous.”

When it comes to the investigation into alleged Russian tampering with the 2016 election, some pro-administration outlets have also been meeting reveals in a troubling way. As news about the Robert Mueller investigation has moved forward, these outlets have spotlighted not the alleged wrongdoing of the powerful but the supposed sins of the people revealing them, hammering away at the leakers. The tactic amounts to a refinement of the age-old national-security rationalization: Not only are government figures automatically exonerated, but those exposing them should be reflexively punished.

A no-win situation

Some of the media’s wounds are self-inflicted. Viewers of cable news do see a lot of stories about, well, cable news. That can make for compelling television — witness Anderson Cooper’s eye-rolling standoffs with Kellyanne Conway — but doesn’t do much to shed the perception that the press is more interested in itself than the truth. Certainly that was in evidence Thursday and Friday in the wake of the Trump-MSNBC showdown, as many outlets devoted large chunks of broadcast real-estate to the back-and-forth.

But many outlets are also in a no-win situation. The only way to get the word out about a media being suppressed or lied to is to report on the ways that’s happening, which can in turn seem like self-interest.

The Trump era can also magnify mistakes. Just a few days ago three CNN staffers resigned over an online story about Trump ties to a Russian investment fund. CNN, like print outlets, has broken a lot of news in this realm. Yet the company determined the journalists did not have the requisite sourcing to publish in this instance. The story was retracted with an editor’s note, as stories have been since the beginning of journalism.

But the response by the White House to the misstep was louder — and found more willing ears — than in other periods. Within a 24-hour period Trump had sent a series of tweets containing messages such as “Wow, CNN had to retract big story on Russia…What about all the other phony stories they do? FAKE NEWS!” Or “So they caught Fake News CNN cold, but what about NBC, CBS & ABC?”, adding print outlets. Collectively, the tweets garnered more than 200,000 likes.

And yet, through all this, some optimism slips in.

The prospect of the press losing its freedom seems to have energized it, both with the kind of stories it’s done and the zeal with which it’s done them.

“The small ray of hope is maybe the media is starting to figure out why they’re here,” Knappenberger said. “In a long slow [economic] decline you never really think about it. And then Trump comes along and makes people realize what it’s all for.”

Certainly that push is true from the public side, which has responded to a Trump presidency by reading and watching more. (Total viewers of cable news in the second quarter was up 86% year to year for MSNBC, 39% for CNN and 27% for Fox News.) At the very least it’s harder to erode the rights of the press if people are paying attention to it.

Maybe the greatest comfort comes from the fact that knee-jerk anti-media responses don’t necessarily translate into deeply held conviction. Few people really want a free press taken away, even and especially those opposed to the so-called mainstream media; the voices they embrace will then have less room to flourish too.

Besides, even mainstream outlets may be more trusted than the public rhetoric suggests.

“It’s a little like politics — nobody thinks Congress is doing a good job but everyone votes for their congressman,” said Folkenflik. ”I think of it as a kind of friendly antagonism.” In a climate of so many fears, that may be far better than the other type.

See the most-read stories in Entertainment this hour »

Twitter: @ZeitchikLAT