What’s going on with the freedom of speech and the right to attack the policies or behavior of those in charge?
Many years ago, the Federal Communications Commission adopted the Fairness Doctrine. As summarized by the U.S. Court of Appeals, the Fairness Doctrine impose[d] a double obligation on the broadcast licensee … [to] devote a substantial portion of available time to the discussion of 'controversial issues of public importance.' … [And when presenting such issues] to present responsible conflicting views.”
The requirement “to present responsible conflicting views” was often stated as a balanced presentation of conflicting views, sometimes adding “honest” and “equitable” to balanced – certainly decent aspirations.
That obligation applied to all broadcast discussion regardless of the conclusions reached – it applied to both liberal and conservative programming, programming that favored and supported the actions and policies of the incumbent President and programming that opposed his actions and policies.
The fairness doctrine was repealed by the Federal Communications Commission in 1987 on the ground that it conflicted with the freedom of speech protected by the First Amendment.
But Trump is trying to replace the Fairness Doctrine with a one-sided obligation to be nice to him. The problem with the Fairness Doctrine was that it was difficult to administer, not that it was the exclusive privilege of presidents or other public officials to have the rest of us say nice things about them.
Mr. Trump has already withdrawn funds from public broadcasting because public stations have had the temerity to disagree with him.
Mr. Trump has also been trying to reshape the law to disable other critics – to remove licenses from private broadcasters, penalize lawyers who defended his opponents, and prosecute attorneys general for investigating the legality of his and his supporters actions. Where’s the balanced presentation of controversial issues? Where’s the ability of people in a democratic country to criticize and evaluate their rulers? And what’s left to freedom of speech?
And there’s a lot to criticize:
- To add another flashpoint, Mr. Trump has tried to undermine the citizenship clause, triggering innumerable court decisions that hold, yes, you’re a citizen if you’re born here no matter the president’s pronouncements.
- Should we interpret his behavior on January 6, 2001, as encouraging an armed attack on the U.S. Congress, and was that OK? Was it not only within his legal powers but also OK to pardon those who shot at members of Congress and at officers whose duty it was to protect Congress. Was his behavior on those events equivalent to giving what the Constitution calls “aid and comfort” to the enemies of America?
- Is it American to decide and decree that portions of the Constitution no longer count and should not be enforced, including, among others, the citizenship clause and the limitation to two presidential terms?
- Is it OK for a President to decree what state and private colleges can teach? Or does that violate the Freedom of Speech protected by the First Amendment. And is any of that the behavior of a loyal American?
Trump has used the powers of his office to make it difficult and expensive to raise those questions. It's not clear that Trump believes in anybody’s freedom of speech other than his own. Would his behavior with respect to the media fit better in a country with a history of kings, monarchs and other autocrats?
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran. He enjoys the help of his editor, Jeanette Gottlieb
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