Trump and Media Law
by Eric P. Robinson, USC School of Journalism and Mass Communications
Back when Donald Trump was about to be inaugurated for his first term as president, I wrote a column on “What Trump can do to thwart the press.” Much of what I wrote was based primarily on his campaign statements and actions. But he also now has a track record both during his first term and during his campaigns that can be examined to predict what actions he and his administration could attempt to do regarding freedom of speech, and particularly freedom of the press.
In the end, although the first Trump administration took several actions to impede the media, he was largely thwarted by the courts and administrative processes, and not much actually changed regarding media law rules and principles.
For his second term, Trump has pledged to rollover such obstacles. Whether he can do so remains to be seen.
Libel Law: Before, during and after his first term, Donald Trump was a serial libel plaintiff, although his lawsuits were not successful. As president, Trump did not really follow up on his campaign rhetoric about reforming libel law by eliminating the “actual malice” requirement, which applies in cases involving public figure plaintiffs or matters of public concern. First of all, the president has little power to make such a change. And even though two justices have expressed recent criticism of the standard and litigants have brought numerous cases challenging the standard, a majority of the current court seems to not be interested in revisiting the “actual malice” standard. But, as media attorney Mark Sableman points out, “loyalist Trump judges may hesitate or even refuse to enforce Sullivan or other current media First Amendment protections.”
Censorship: Efforts by the first Trump administration to block publication of embarrassing books were blocked by courts applying the long-standing principle that the First Amendment bars all but the most dire prior restraints. And efforts by the administration in its early days to discover the identities of online critics were dropped.
Federal FOIA: The language of the federal Freedom of Information Act was last modified to strengthen disclosure requirements in 2016. But each presidential administration has some influence on how federal agencies deal with FOIA requests. Transparency was not a priority for the first Trump administration, although the Biden administration was also criticized on the issue. Note that the federal administration’s approach to FOIA does not determine policies and procedures under South Carolina’s separate state FOIA.
Section 230: Section 230, part of the 1996 Telecommunications Act, provides that website operators (including social media sites and news organizations’ websites) are not legally liable for most of the material that users post to these sites. It is credited with—and blamed for—the freewheeling nature of material posted online, and has been called “the 26 words that created the internet.” Both Republicans and Democrats have proposed repealing or significantly modifying the provision, although in different ways and for different reasons. Major changes are likely with Trump in the White House and his party likely to control Congress.
FCC Regulation: On election night, the Trump campaign barred reporters from several news organizations from the victory celebration, apparently for coverage that Trump did not like. When he was president, Trump’s administration revoked the White House press pass of CNN reporter Jim Acosta over critical coverage, but backed down when a judge ordered the pass be restored. Trump has also threatened to revoke FCC licenses from television and cable networks whose reporting he didn’t like, even though it is individual stations that hold FCC licenses, not the networks and the FCC does not license cable networks at all. Also, the FCC cannot revoke licenses over First Amendment-protected speech.
Net Neutrality: One area of FCC policy where there is likely to be change is “net neutrality,” which requires that internet companies treat all content the same, and not favor some content over other content. Without such a policy, for example, a company that both provides internet access and online content could offer its own content at one speed, and competitors’ content only at a slower speed. The policy has been implemented and repealed several times since 2002, because of court challenges and changes in presidential administrations. The FCC recently reimposed the policy, but it was blocked in court and the Trump administration is almost certain to repeal it (again).
Media Mergers / Anti-Trust: While president, Trump’s administration unsuccessfully sought to block the merger of AT&T and Time Warner, apparently because of his gripes against CNN. But now the CEO of the legacy of that merger (and subsequent split-up), Warner Bros. Discovery, has said that he does not foresee the second Trump administration blocking media mergers. The new administration may also scale back or end legal actions by the FCC and the FTC challenging major social media and tech companies as monopolies.
General Attitudes Towards the Press: A constant of Donald Trump’s political career has been statements of disdain for the press. He is not the only president to have expressed such sentiments. But his near-constant haranguing of and scorn for the media has been unprecedented. This attitude is also reflected in public opinion polls, and may be one of the more direct impacts of Trump on the media, exacerbating the financial issues that most media are now facing. Encouraging hostile public attitudes towards the news media could have huge implications, in the law, the media business and American politics and society as a whole.