Law Quarterly

Fake News and Government Censorship

By Jake Moldowsky

Dec
17

It seems fitting that our country, in the past and the present has been deeply entrenched in wars. What made America in the 18th and 21st century so special are not the conflicts themselves though, but how it is that we adapt to such situations and what values we salvage from the forge. While the Revolutionary war was a fervent rejection of injustice, the war we find ourselves in today is waged with tongue-in-cheek vitriol and twitter-storms. What I’m so indirectly referring to, of course, is the war of words that the Trump administration is waging on all of the other American institutions, while the American public plays the role of the audience.

While that parallelism may be a stretch, there is an imperative at stake in the fight at hand, and that is maintaining the dignity of our democracy. The main point of peril here is not how this conflict manifests itself, but rather what this claim the President made mid-October entails, tweeting, “Why Isn’t the Senate Intel Committee looking into the Fake News Networks in OUR country to see why so much of our news is just made up-FAKE!”

Even though many of the posts made while the president is sporting his pajamas are blunt and instigative for their own sake, this comment in particular should raise red flags for any of those who have read the First Amendment to the Constitution. Ensuring both freedom of press and freedom of speech, censorship of the media is one of the slippery slopes that dystopian futures usually form out of, leading to a constraint on the flow of information to the public.

But while our minds may wander, there is a less far-reaching issue with the Federal Government taking interest in controlling what the free press is producing. Already, the Trump administration has taken steps to remove CNN, The New York Times, and MSNBC from the press briefing room under the guise of their publications being “fake news” sources; and if a Senate Committee was banded to investigate the free press, there would be important consequences for the public and for our republic.

Aside from verifying the claims the media makes, or imposing a partisan analysis of how astray this has gone, a curious pre-law student can’t help but inquire about what the constitutionality of such an investigation would look like, and what would precedent about censorship of media have to say about this? To answer such a question, we’ll have to delve into the past of our common law system and legislation pertinent to this issue, and attempt to construct a working picture of how the judiciary would take to such a position.

Claiming that news is fake is a tedious task since the accusation is founded on a subjective idea of ‘truth.’ With regard to the news media, the sources they use are often anonymous, but if not, are cited and verified; acting on an unverifiable source is an easy way to undermine your credibility as a reliable source. When it comes to media about the Trump administration,however, a different standard needs to be applied; one that puts less emphasis on the truth of a source. New York Times Company v. Sullivan (376 US 254 [1964]) established a precedent that public officials are subject to any criticism “…unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” This means that when CNN, per se, posts a piece about the incompetence of the current president on a foreign stage, there must be an intentional deviance from the truth, and the intent to make such a false claim. This standard is much more difficult to meet, and would be unlikely to merit an investigation of the scale proposed.

If we look back into the fray of Supreme Court rulings relevant to the censorship power of a Presidential Administration, it is again made clear that the bar for necessary censor is quite high. Through the Roosevelt and Truman administrations, the government has employed censors to preserve military secrecy, attempting to keep the public safe from confidential and oftentimes uncomfortable knowledge. To this end, FDR passed Executive Order 8985, which created The Office of Censorship, and granted it the jurisdiction of mail and packages with “absolute discretion.”

We again see this trend of protecting the public in New York Times Company v. US (403 US 713 [1971]), where the Nixon administration attempted to halt The New York Time’s publishing of the Defense Department’s ‘Pentagon Papers,’ regarding activity in the Vietnam War. Asking for Prior Restraint (or censor on material before publication), the Court denied the President’s vague claim to aiding in “the security” of the American people, as it didn’t find the importance of such a censor to warrant a removal of First Amendment protections.

So then, if we look at the President’s claim, “it’s frankly disgusting the way the press is able to write whatever they want to write… and people should look into it,” his disgust may be one of substance, but to satisfy the standards set in American legal history, there would need to be a more pressing reason to suspend the media’s claim to free political speech and press. The admonishment of the Constitution on an issue like this would be a grievous miscarriage of the law, unlikely to be upheld by the judiciary, even without discussing more ideal implications about free dissemination of information across our Democracy.

If the Trump administration wants to do more than just undermine the credibility of the media ad hoc, it would have to formulate a working legal argument as to why the media’s publishing of news deemed ‘fake’ could be dangerous to the welfare of the public. To have a case that would hold up to these steadfast protections, the administration could either platform for a different interpretation of the First Amendment’s “zones of freedom,” one that would allow for exceptions in this case specifically, or they could show how the spread of false information could be dangerous to the public’s safety, a burden that the Nixon Administration was unable to meet previously.

Either way, for this administration to follow through on the claims that the President is making, it must be thorough and meticulous in their proceedings, as the law of the land doesn’t take kindly to remarks of such stature without merit. Undermining the public’s faith in the free press however, may be a constitutional infringement that the court has yet to have to tackle in the capacity we face today.

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