Supreme Court rules Trump’s war on the free press unconstitutional – in 1971.

Cross-posted from skyislandscriber.com.

Our President, Donald Trump, sworn to uphold the constitution, once again, last night, attacked the free press, calling journalists “dishonest” and accusing them of promoting “fake news”. His red meat crowd howled their pleasure as he pointed to the journalists present.

Sometimes it is worth taking a deep breath and contemplating what this is about. I’ve got two sets of quotes to remind us of the stakes here. One is an example of the press reports of Trump’s comments rant from Politico.com. The second is from a 1971 Supreme Court ruling affirming the supremacy of the First Amendment to our Constitution.

Trump’s attack on our free press: “very dishonest people”

Politico reports that Trump vilifies ‘dishonest’ press at Michigan rally. As the White House press corps celebrates at an annual dinner in Washington, the president again demonizes the media at a rally in Middle America.

For the second consecutive year, President Donald Trump vilified the American press at a campaign-style rally orchestrated to effectively counter-program an annual dinner in Washington, D.C., celebrating the work of White House journalists.

“These are very dishonest people, many of them. They are very, very dishonest people,” Trump said at a boisterous event in Washington, Mich., speaking in front of a blue banner emblazoned with the president’s campaign slogan, “Make America Great Again.”

“Fake news. Very dishonest,” he added. …

Why it matters

Yesterday, before Trump’s rant, the Scribers watched the movie “The Post”. The film reminds us of what the First Amendment is supposed to do. At issue was the publication of The Pentagon Papers by the New York Times and the Washington Post. The two publications asserted their freedom to publish under the First Amendment. The Nixon administration and its lawyers argued that national security interests constrained that freedom. The case went to the US Supreme Court which, rather quickly, decided the case in favor of the newspapers. The announcement of that decision, in the film, was abbreviated so I went looking for the text of the decision. More or less arbitrarily I picked up the text from justia.com. Here are excerpts.

U.S. Supreme Court

New York Times Co. v. United States, 403 U.S. 713 (1971)

New York Times Co. v. United States

No. 1873

Argued June 26, 1971

Decided June 30, 1971*

403 U.S. 713

The United States, which brought these actions to enjoin publication in the New York Times and in the Washington Post of certain classified material, has not met the “heavy burden of showing justification for the enforcement of such a [prior] restraint.”

But the majority thinking, expessed by Justices Black and Douglas, in the 6–3 decision is powerful.

Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.

In seeking injunctions against these newspapers, and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. [Footnote 1] They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed:

“The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. …”

In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.

… the Government argues in its brief that, in spite of the First Amendment,

“[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief. …”

In other words, we are asked to hold that, despite the First Amendment’s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of “national security.” The Government does not even attempt to rely on any act of Congress. Instead, it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to “make” a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law.

… To find that the President has “inherent power” to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make “secure.” No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.

The Court’s decision is just as relevant today as it was decades ago – and I assert even more so. We have now a President at war with most of our institutions, including the press. He is backed by a majority of both chambers of Congress, a “conservative” majority on the Supreme Court, and a vocal minority of the populace. These are exactly those conditions foreseen by the Founding Fathers. The free press, protected under the First Amendment, is the ultimate check on governmental power over the governed. Members of the press are not “dishonest”. They do not dispense “fake news”. Rather, they are doing their constitutionally mandated job of serving as a check on executive and legislative excess. Trump’s rhetoric and actions amount to “injunctions like those … that Madison and his collaborators intended to outlaw in this Nation for all time.”

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