Amicus With Dahlia Lithwick | “The Press, The President, and Enemy Construction”

Episode Summary – September 29, 2018

Episode Overview

This episode centers on the First Amendment’s “press clause” and its status amid President Donald Trump’s unprecedented antagonism toward the American media. Host Dahlia Lithwick speaks with law professors RonNell Andersen Jones and Lisa Sun about their law review article, “Enemy Construction in the Press,” examining Trump’s hostile rhetoric, its effects on democratic norms, and the historical and legal context surrounding the press’s constitutionally protected role.

Key Discussion Points & Insights

1. The Press Clause: A Constitutional Foundation

• Historical Importance: Lisa Sun explains that the framers saw the press as “critical to self-government,” serving as an institution to “push back against government” and provide essential information to the public to ensure accountability.

  "We need to be able to have institutions in our society that can push back against government, that can investigate, that can publicize facts, so that people know what their government is doing and...how to hold their government accountable."
  — Lisa Sun (03:08)

• Uniqueness in Protection: Lithwick notes that the press is the “only profession...explicitly protected by name in the Constitution” (02:07).

2. Trump vs. Past Presidents: What’s Different?

• Other presidents (Nixon, Reagan, Carter, Obama) had adversarial relationships with the press, but Trump is “different, not just in degree, but in kind” (04:01).
• Nixon’s antagonism was mostly private, and he acknowledged the role of a free press; Trump is overt and public in his attacks, labeling the press an “enemy” (06:53, 07:10).

  "Even Nixon is different in some pretty significant ways...he didn't declare them, to the people, to be the enemy of the democracy, which is exactly what's happening in the Trump administration."
  — RonNell Andersen Jones (04:25)

• Trump openly questions the legitimacy of the press and regularly uses derogatory language (fake news, failing, dishonest), transforming the press from a personal enemy into a public, communal enemy (07:49).

3. Examples of Trump’s “Enemy Construction”

• Rhetorical Attacks: Trump’s campaign and presidency are marked by a “steady drumbeat of attack” on mainstream media, both in language (“the enemy of the American people”) and action (limiting access, attacking individual journalists) (09:14, 10:50).

• Deflection from Truth: Trump’s well-publicized instance of lying about the Trump Tower meeting and dismissing it as inconsequential since it was “only to the failing New York Times,” is cited as a “manifestation of an entirely different attitude about the press” (11:53).

  "[His] assertion that telling a bold-faced lie to the failing New York Times is not problematic for a president...is new." — RonNell Andersen Jones (13:23)

• Normalization of Non-Truthfulness: Sun observes that they did not predict how Trump’s framing would lead to a justification for not being truthful to the press, rationalizing that “they aren't going to report honestly anyway” (14:09).

4. Shifting Norms and Erosion of Democratic Safeguards

• The Trump era has seen the rapid erosion of norms, not just laws, governing press-government relations. Many practices once taken for granted have proven to be mere “soft norms” (18:16).
• Andersen Jones cautions that much of what secures press freedom is not written in law but is expected conduct—making these norms vulnerable (18:16).

  "...a lot of things that we thought were understood as a democratic background...didn't rise and fall on any clear constitutional protection..."
  — RonNell Andersen Jones (18:38)

5. The Supreme Court's Changing View of the Press

• The “glory days” of Supreme Court jurisprudence (1960s–1980s) championed the press’s democratic role; now, SCOTUS opinions are more “hedged,” often equating media corporations with any corporation (22:24).
• In Citizens United, the majority rebuffed the idea of the press as a special constitutional actor, marking a significant rhetorical and legal shift (24:11).

6. Carl Schmitt & The Theory of Enemy Construction [25:38]

• Sun outlines Carl Schmitt’s theory: defining “[friends] and [enemies]” is the essence of politics for a sovereign, and doing so enables “exceptions to the law” in emergencies.
• Trump’s “enemy construction” frames the press not merely as adversaries, but as existential threats (“aiding terrorists” or “human traffickers” by reporting on certain stories) (28:35).

  "...he alleged fairly early on...that the media was effectively aiding radical Islamic terrorism...that the media was therefore sort of complicit in some way and aiding this external enemy of the United States." — Lisa Sun (28:53)

7. Media’s Dilemma: How to Respond to Vilification?

• Lithwick raises the conundrum: When the president brands the press as “the enemy of the people,” should journalists fight back or remain measured? (38:05).
• Andersen Jones warns that mutual “othering” deepens polarization; instead, she advocates for recommitting to the press's educational and democratic function and for broader civic engagement in defending free journalism (39:47, 43:18).

8. The Role of Modern Media and Public Susceptibility

• Technological change (social media, direct communication) has enabled presidents to bypass the press, making it easier to “undermine the press, to cast them as an enemy” (36:02).
• Declining resources in newsrooms and falling public trust also leave the press less equipped to defend itself (36:12).

9. Danger of Public Numbness & Politicization of Facts

• Lithwick voices concern that the public is becoming numb to attacks on the press, treating them as “white noise,” undermining democratic accountability (44:05).
• Sun notes research (Dan Kahan, Yale) showing that as facts become politicized, people become “bad at processing information”—a core risk to reasoned democracy itself (45:43).

10. Paths Forward: Civic Education and Public Action

• Andersen Jones remains “not wholly without hope,” emphasizing the potential of civic education and media literacy to counteract polarization and misinformation (49:03).

  “I'm convinced that large scale media literacy campaigns...target the well intended among us [to] become savvier consumers and more critical demanders of information.” — RonNell Andersen Jones (50:00)

• She stresses that defending the press cannot “entirely or even primarily” fall to journalists—it is a collective civic duty (43:18).

Notable Quotes & Memorable Moments (with Timestamps)

• “Conceiving of press freedom as an important civil liberties issue is going to be central to the continued existence of our democracy as we know it.”
  — RonNell Andersen Jones [00:08, repeated at 34:55]
• “Trump's constructing of the press as an enemy, his othering of it...is different, not just in degree, but in kind...”
  — RonNell Andersen Jones [04:01]
• “We utterly missed the possibility that within a year we would get to the point where the president was saying, it's not a lie if I lie to the lying press.”
  — Dahlia Lithwick [15:12]
• “If we can't have sort of reporters that enough of us trust to identify facts...that is a real threat to reason politics, to reason democracy going forward.”
  — Lisa Sun [47:05]

Key Timestamps for Segments

• Press Clause vs. Speech & Religion – 02:00–03:08
• Difference Between Trump & Previous Presidents – 04:01–08:29
• Trump’s Rhetoric and Actions – 09:14–14:09
• Norm-Erosion Under Trump – 18:16–19:41
• Supreme Court's Changing Tone – 22:24–25:38
• Carl Schmitt and Enemy Construction – 25:38–30:50
• Academia and Public Response – 32:02–34:55
• Media’s Current Vulnerabilities – 35:19–38:05
• Dilemma for the Press in Response – 38:05–39:47
• Danger of Numbness & Politicization of Fact – 44:05–47:05
• Civic Education and Hope – 49:03–52:08

Conclusion

This episode deftly intertwines legal history, political theory, and current events to explore why Trump’s attacks on the press are unprecedented in American history—not merely hostile, but transformational and corrosive to democratic norms. The hosts and guests highlight the vital importance of the press as a democratic safeguard, warn of the dangers of numbing and polarization, and ultimately urge collective action and civic education to protect both journalistic freedoms and the public's capacity for reasoned self-government.

Guests:

• Renell Andersen Jones, University of Utah College of Law
• Lisa Sun, BYU Law School

Host: Dahlia Lithwick, Slate
Based on the law review article: "Enemy Construction in the Press" (Arizona State Law Journal)