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Can the next president rewrite the First Amendment?

Posted: Oct. 17, 2016 | Tags: elections


New York Times photo

Adam Liptak

The 2016 presidential election’s effect on free speech comes with a good-news-bad-news message: The Supreme Court is likely to continue protecting free speech for reporters and the public, but “secrecy creep” will probably worsen in executive agencies and the White House.

A bipartisan trend towards less transparency, “secrecy creep” results in less information for the press and the public, Katie Townsend, litigation director for the Reporters Committee for Freedom of the Press, said. She made her comments during a National Press Club Journalism Institute panel discussion Wednesday. 


Photo by Delane Rouse/DC Corporate Headshots

Katie Townsend

Townsend was one of several experts to discuss how a President Hillary Clinton or President Donald Trump would interact with the media and respond to First Amendment claims. The panel of reporters and attorneys weighed in on the matter during the event, “Can a President Really Rewrite the First Amendment?: A Look at Campaign Threats and their Potential Impact on the Media.” 

The panelists included:

  • Kenneth Jost, author of "Supreme Court Yearbook," and an adjunct professor at The Georgetown University Law Center
  • Anita Kumar, White House Correspondent for McClatchy Newspapers
  • Adam Liptak, Supreme Court Correspondent for The New York Times
  • Katie Townsend, litigation director for the Reporters Committee for Freedom of the Press
  • Chuck Tobin, Partner, Holland & Knight LLP (Moderator)

Obama’s Transparency Better, Only in Comparison

First Amendment panel


Panelists talked about the rise in requests under the Freedom of Information Act — and the continuing backlog in filling those requests.

The Obama Administration has not endeared itself to the media with its openness, despite the president proclaiming from day one that his would be “the most transparent administration in history.” 

Some of the limitations stem from the demand for information. While it is true Freedom of Information Act (FOIA) requests have increased dramatically during the Obama presidency, agencies also have processed fewer. In fiscal year 2014, federal agencies received about 10,000 more requests than the previous year, but processed approximately 30,000 fewer requests. That same fiscal year the administration received nearly 715,000 requests, but processed just shy of 650,00 requests.

The press corps has been complaining “for years” about Obama’s transparency record, but the current election cycle is giving those same reporters pause, McClatchy White House Correspondent Anita Kumar said. 

“A funny thing has happened, which is President Obama is not looking so bad anymore,” she said. “I think that the White House press corps and those of us on the campaign think that either candidate will be worse for press access.”

For Kumar it is not just about FOIA requests, but also about simple, everyday access to the president’s schedules, meetings, etc. 

Two recent events shed light on how Trump and Clinton would treat their press corps. 

Prior to the second presidential debate, Trump was in the midst of the uproar over a leaked 2005 video in which he made lewd comments about women, so he was avoiding unscripted media attention. He left his traveling press corps behind in New York to go to the debate without them; they found out he had left through a Tweet from the candidate’s campaign manager

And when Hillary Clinton fell ill during the 9/11 Memorial event, her team left the press corps behind without informing them about what happened. Her campaign later revealed that she had been diagnosed with pneumonia a few days earlier. 

“We think there will be less information, there will be less news conferences, less interaction with the media,” Kumar said.

The Supreme Court, Safe for Now

The vacant seat on the Supreme Court left by the death of Justice Antonin Scalia earlier this year has been a recurring issue in the election. President Obama’s pick of Merrick Garland has been indefinitely on hold as Congressional Republicans argued the next president should be able to choose the new justice. 

How has the Roberts court treated press and speech freedoms so far? And what would a Clinton or Trump nominee mean for the court? 

New York Times v. Sullivan is a landmark case for press freedom that protects newspapers and reporters against libel suits from public officials. The case set the standard that public figures have to prove the knowledge and intention of the reporter, namely that a reporter recklessly disregarded facts or the truth

The Roberts court has a good track record on First Amendment protections of core political speech, The New York Times Supreme Court Correspondent Adam Liptak said. 

“I don't think this court is going to give the press any further protection, nor do I think it’s going to cut back on what two generations now have thought to be a core protection,” Liptak said in reference to the Sullivan case. 

First Amendment protections are also not easily split along partisan lines, Liptak noted. Citizens United was a First Amendment case — a ruling Democrats continue to take issue with because of the role money plays in campaigns. 

No matter who picks the next justice, Liptak said if he were still a media lawyer, he would try to keep his cases out of the court.

“I don't think they are eager to do us a lot of favors,” he said. 

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