by Lucas A. Powe Jr., author of The Fourth Estate and the Constitution: Freedom of the Press in America
Two hundred fifty years ago William Blackstone wrote “the liberty of the press is indeed essential to the nature of a free state” and that observation holds true today. A vigorous free press is an essential component of any functioning democracy. Yet President Donald Trump has called much of the national press “the enemy of the American people.” That’s the language Joseph Stalin used for his purges. If what is reported is not to his liking, Trump proclaims it “fake news.” These latest statements come after he stated, while campaigning, that libel laws should be loosened so that public figures like himself could sue the press with an expectation of winning large verdicts. Yet the Framers put protection of the press in the Constitution for a reason. They knew that power is addictive and that checks on it are necessary.
Trump, like presidents before him, bridles about what he deems unfair coverage and the problems that unauthorized leakers cause any administration. His predecessor Barack Obama set an unenviable standard by initiating more prosecutions for leaks than all post-World War II administrations combined. Yet leakers serve a valuable function of getting information into circulation and debate. They must remain anonymous because otherwise they would face retaliation and the public would be the worse off for it.
A free press periodically reminds us of its necessity. Without the courage of the Washington Post, Richard Nixon’s efforts to subvert the Constitution might never have come to light. And the dangers of a docile press were all too evident in the build-up to the Iraq War where Bush Administration statements were taken at face value rather than subjected to the scrutiny that a decision to go to war should demand. Thus John F. Kennedy was able to prevent publication of leaks about the Bay of Pigs operation only to realize that if the New York Times had printed what it knew, the ill-planned and ill-fated invasion would never have occurred.
The job of presidents is to attempt to leave the country in better shape than they found it. Every presidency has an end, but the key democratic institutions remain in place and should be strengthened. That always includes a free and unafraid press because, as the Supreme Court has stated, we have a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Rather than being an enemy of the people, a free press is our greatest ally. As I wrote in The Fourth Estate and the Constitution: “the press is an autonomous functioning watchdog on government, publicizing abuses, and, one hopes, arousing the citizenry.”
Lucas A. Powe, Jr., holds the Anne Green Regents Chair at The University of Texas, where he teaches at the School of Law and the Department of Government. A leading historian of the Supreme Court, Professor Powe clerked for Supreme Court Justice William O. Douglas before joining the Texas faculty in 1971. His latest book is The Supreme Court and The American Elite, 1789-2008 (2009). Previously , reflecting a split career as a historian and a First Amendment scholar, especially of the electronic media, his three award-winning books were American Broadcasting and the First Amendment (California 1987), The Fourth Estate and the Constitution (California 1991), and The Warren Court and American Politics (Harvard 2000). Powe was also a principal commentator on the 2007 four-part PBS series “The Supreme Court.” He has also been a visiting professor at Berkeley, Connecticut, and Georgetown.