← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The Press, The President, and Enemy Construction
00:53:37
Law Professors Lisa Sun and RonNell Andersen Jones on morphing the media into enemies of the people.
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- [00:09]
A
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.
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B
Hi and welcome back to Amicus, Slate's podcast about the courts and the Supreme Court and the rule of law. I'm Dahlia Lithwick and I cover many most some of those things for Slate this weekend. Perhaps at the very moment you are listening to this, I am out in sunny Austin hosting a live show with some of the great legal thinkers of this moment, and we're going to be dissecting all of the latest developments in whatever the latest crazy developments are as they're developing, which I can't tell you now what they're going to be because God only knows. But also we're going to be looking at the big long term constitutional challenges facing the Supreme Court and this country. And all of that is going to be available to you in a special live episode early in the week. In the meantime, today I want to bring you a conversation I had over the summer about the First Amendment, but not the speech and religion clauses that we've been obsessing over this entire entire year on the show. No, we're going to turn our gaze instead to the press clause, which, believe it or not, is just as important, at least I think so, and how the press clause fits into the whole machinery of the First Amendment. The press, in fact, she says braggishly, is the only profession that is actually explicitly protected by name in the Constitution. And while it is very, very meta for a journalistic podcast to be thinking about journalism, well, that's what we're going to talk about on this show. So please indulge me. Renell Anderson Jones and Lisa sun have been writing about the press and Donald Trump's relations the press and the implications of that for constitutional law for quite some time now. The law review article I wanted to talk about today is called Enemy Construction in the Press, and it's published in Arizona State Law Journal. It's an analysis of the relationship between Donald Trump and the media through the lens of the First Amendment and the press clause. Renell Anderson Jones is a professor of law at the S.J. quinney College of Law at the University of Utah, and Lisa sun is an associate professor at BYU Law School. We wanted to talk about Donald Trump in the Constitution and the press because it's one of those things that is everywhere and somehow nowhere at the same time. We all talk about it constantly, especially in the media, but we never really pin it down in any formal or coherent way that, at least for me, has any real legal meaning and values. So I started by asking Lisa if she could tell us about the Constitution and the press clause. What were the framers trying to do? Why did the press matter so very much to them that they created a right to a freestanding press? What were they worried about?
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C
I think the press is really critical to self government and I think that's one of the most important reasons the framers included it was that 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 they know how to vote and they know how to hold their government accountable.
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B
Renell, this article is about Trump in the press. I know you've been thinking about Trump and the press from the beginning of the 2016 campaign, but I want you to help us put this in context. Only because other presidents hated the press. Reagan didn't much like the press. I think you point out Jimmy Carter didn't care for the press. We know famously Nixon was at war with the press. And Obama, I think your quote was, had a dismal record on press freedom. So really, is Trump all that different?
- [04:01]
A
All of those things are true. And one of the things that we discovered in our research is that moderate press president relations are certainly riddled with examples of that kind of tension or antagonism between the two. And we don't mean to suggest that there haven't been efforts by other presidents to control or manipulate or, you know, combat the work of the press. But something very different is happening here. And we make the argument in our piece that Trump's constructing of the press as an enemy, his othering of it, and consistently trying to persuade the American public that it is not with us, but rather against us, is different, not just in degree, but in kind from the sorts of tensions that other presidents had. They all engaged in spin and they all tried to sort of send their policy through the best possible lens to us. But even sort of the very worst characters among them, and we, I think it's widely understood that the worst character, the second runner up in terms of hatred of the press, is probably Richard Nixon. And so commentators on Trump and the press have pretty regularly argued that Trump's approach just echoes Nixon's, that they're the same. And that's true in a number of notable ways. But we think even, even Nixon is different in some pretty significant ways. The first is that the sort of steady drumbeat of attack against the press is something we did not see in the Nixon administration. Right. It punctuated a lot of his trou presidency, but it wasn't every time he opened his mouth and every time he spoke to the people, he was disparaging the press. That. That just definitely wasn't the case. And indeed, often Nixon said the press is this sort of necessity. It's an entity that I respect, even if I don't like the coverage that I have from them. I wish they weren't covering me the way that they were. I wish they weren't saying the things that they were. I will counter the things that they've published or broadc. But 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. More to the point, when he did refer to them as the enemy, when he did characterize them as this other, he did so privately. So we know about Nixon's major tensions with the press through memoirs and recordings that became public much later. It wasn't an aggressive campaign internally from his administration to speak to the American public about this enemy, which is what we see in the Trump administration.
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B
What you're saying is that Nixon would be grumbling to his aides and grumbling to the people around him. He was incandescent with rage about it, but then he would pull it together and say, man, I still believe that there's a First Amendment responsibility for the press to check government. Right. It was kind of like he was a secret hater of the press.
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A
Yeah. I mean, sometimes he, you know, sent Spiro Agnew to do the public bashing of them or otherwise, you know, slipped comments from various members of the administration into interviews that made, you know, snide, backhanded remarks. But overall, I mean, we have a number of instances that we cite in our paper of him saying, you know, straight up, I think the First Amendment matters. I think a free press matters. Even when you beat me up, I'm grateful that you're there. You're a proxy for the people to whom I owe information. And that is not the sort of thing we see as at all coming from Trump. Quite the contrary.
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C
This is Lisa. I think one of the other things to note is that when Nixon described the press as an enemy, or when his aides did, when they talked about them as part of the opposition party, it was a more personal rivalry with the press. In most respects, he wasn't saying, they're the enemy of the people, they're the enemy of democracy. As Rennell said he was saying, you know, I'm in this kind of battle with the press, and I have this personal rivalry. And so that's a different kind of enemy, a personal enemy as opposed to a public enemy, where we're trying characterize the press as opposed to the democracy, opposed to the good of the American people as an institution that has and is following its own agenda that is different from the agenda of the American people.
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B
It occurs to me as I'm talking to you that I should have started this by saying, give us some examples, because I think we all have this sort of inchoate sense that Donald Trump says bad things about the press. But can you give us. And I think in your piece, you point out it starts in the campaign and it changes quite markedly once he's inaugurated. But can you just give us. Set the table and tell us some of the kinds of things the president and also the candidate has said about the press. And also, I think you point out there are things like panning the press and credentialing the press that are also nuke. So can you just tell us what the world looks like outside your window? Yeah.
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C
One of the things that's been so interesting about this project for Renella and I is that we wrote a different paper together that was about enemy construction in a different context, when the government tries to create enemies in order to justify abridging ordinary liberties or limiting public access to information. And we were writing about that in the context of big disasters and how sometimes we see this enemy construction happen, as we did with the characterization of people after Hurricane Katrin. And so we'd written about enemy construction and thought about it, and we began to see this happening with Donald Trump, that there were all these kind of clues that he was mapping on to the kind of enemy construction that we'd identified in the past. And as we started to write this piece, in a way, it became both more and less interesting because the things that we'd sort of seen as implicit all of a sudden became explicit with Donald Trump specifically saying, for example, that the press, the mainstream press, is the enemy of the American, the enemy of the public, making those kind of very explicit identifications of the press in that way. And as you said, it started during the campaign, and it's just burgeoned during his administration. And one of the first public appearances that he had, he was saying, you know, the press are the most dishonest people. They make up stories. We need to limit their use of unidentified sources because they are just making these sources up. And so we've seen so many things along those lines. I'll let Renell add a more examples.
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A
I mean, one of the things that we have noted and that I think the American people are increasingly noting is that he characterizes the press as an enemy both in the things that he says, right. The rhetoric that he uses, fake news, bad, failing, despicable. Sometimes the rhetoric is right, ad hominem attacks on reporters for the way they look, for their backgrounds, sort of personal, sort of nasty, vilifying of individuals. So there's a rhetorical component, but there's also in the things that he does, right, the cooperation or lack thereof in access to the, for the White House press corps, telling people where he'll be and when considering it, his obligation to, or failing to consider it his obligation to offer truthful information. We saw an example of this when he was speaking to some reporters on the White House lawn mid summer and was talking to them about a they were confronting him with the fact that it had become apparent that he had stated a demonstrable falsehood about his role in communication following the meeting that Donald Trump Jr. And Paul Manafort and others had with a Russian attorney in Trump Tower. And he, the president had in fact dictated the response that his son Donald Trump Jr. Had given in that instance and then had said that he hadn't. And he was confronted about this and, and his response was not an apology and it wasn't embarrassment and it wasn't to even attempt to say that this wasn't a lie. It rather was to say, well, it wasn't like I was under oath. It wasn't like I said that to a high tribunal somewhere. I said it only to the failing New York Times. Right. Which is a manifestation of an entirely different attitude about the press and its role vis a vis the American public. Right. So previous presidents, although really wishing that they didn't have to speak through the press to the people, did recognize that when they spoke to the press, the press was acting as a proxy for some segment of the American population and that they had an obligation to speak honestly or give information truthfully to the American people, even if not to the press. And that is not something that we see anymore. Right. His assertion that telling a bold faced lie to the failing New York Times is not problematic for a president. And in turn what that means is that telling a lie to the public is not problematic. And that's, I think, new.
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C
Yeah, this is Lisa, I think this is one of the things that's been most surprising to us because some of the things that we hypothesized might come from this enemy construction of the press. If you characterize the press as lying and distorting and dishonest, then you might limit their access to information. You might not let them come to the press conferences. You might not credential them. You might make it harder for them to access public information. And those were some of the kind of things that we predicted in our article might come to pass as a result of this enemy construction and as a result of that narrative. But what we didn't see coming, I don't think, was that if you characterize them as lying and distorting, then maybe you think you don't even have an obligation to state the truth to them in the first place. Because it doesn't matter, right? It doesn't. They're not going to report on the facts you give truthfully anyway. So you don't have an obligation to even be truthful with them in the first instance. And I think that that's one area where, as much as we worried about things and we worried about what this progression would be, we've already seen it go far beyond what even we hypothesize might come from it.
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B
I think what you're saying is really fascinating because what you're saying is you published this in 2017, shortly after Trump took office, and you were trying to anticipate where this was going, and you 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. Right. You didn't see that coming.
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A
We actually worried because we wanted to try to be neutral, thoughtful scholars. We wanted to try to apply a theory to a set of facts, and we wanted not to engage in hyperbole. And so we were very careful to sort of think about what the raw evidence manifested and then think about what history has told us that raw evidence could produce. And even the sort of outer edges of the things that we forecast did not capture what we now see today as. And part of this, it was really interesting. When we were writing the piece, we had to keep going back to the law review editors to say, we understand that we have a deadline, but we simply cannot send a piece like this to press without including this latest big thing, which is another massive marker of the way that the press has been vilified and has been sort of sent to the fringes of the sort of American populace. And at some point, we just had to send it to press, right? The moment had come. The editors were ready to publish it, but it became almost a daily task. We were sending messages to each other daily about footnotes that needed to be updated or paragraphs that needed to be included to capture some new mechanism that the president was engaging in that was further compounding this problem that we argued, just to be clear, poses an incredible risk to the democracy.
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B
Well, let's talk about that. First of all, I just have to point out this is the life of the journalist you've just described, where every piece that I file at 4:30 by 5:30 is either totally obsolete or completely overmastered by the events of the day. And I think that it's amazing to me to think about that in law review terms, because it used to be the case that you'd write a law review article and it would be sealed into amber and the truth for decades to come. And now the notion that you are, I think the scholar Harold Bloom calls it belated, you know, that you are literarily belated a week after your law review post is just. Is flabbergasting. And it's a good marker for how fast the ways we think about law has changed. It's not just a journalism problem, it's an academic problem.
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A
But I It's also a good marker for how rapidly norms are shifting under the Trump administration and how difficult it is to track norms that are when there are so many norms shifting and when so much that we used to think of as solid ground we now realize was just a soft norm. I mean, that's part of the problem in the press context, to be sure, is that a lot of things that we thought were understood as a democratic background, just the way a democracy operates, the way press and executive relations happen in a democracy, didn't rise and fall on any clear constitutional protection from the Supreme Court and didn't rise and fall on any clear statutory mandate, but rather were just understood. They were just background norms that had always been so. And this is one of many areas in which the Trump administration is flouting norms related to democratic institutions. And so it's tricky. It's easier in some respects to track shifting law than it is to track shifting norms. And so part of what we think of as our obligation is to say out loud to people, look around you, those norms are shifting. Those things that once seemed stable are not stable, so that we can have important conversations about them.
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B
Well, this dovetails really nicely with some of the work you've done, scholarly work you've done even before the Trump Era, I'm thinking, Renell, you've done a lot of work about the ways in which the Supreme Court for decades has been kind of Nixonian in its approach to the press. Some of the same justices who would, you know, write these lofty love songs to the role of the press in their doctrine would turn around and be smacking the press around, either in private or, I think, as you've pointed out, increasingly constricting the press as they were writing those love letters. Right.
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Yeah, it is. One of the most fascinating dichotomies in all of media law is to really parse carefully the way that the Supreme Court writes about the press in largely, we should say dicta, in just sort of monologuing in cases about the power and the promise and the purpose of the press and the importance of it as an educator and as a democracy enhancer and as a proxy for the public. And at the same moment that those same Justices are in speeches and in private conversations and indeed in making determinations about their own institution and access to their own institution, the ways that the press can receive hand downs of opinions and the accessibility of the courtroom to working journalists. And this is, this is the most preaching to the choir I've ever done in my life, having a conversation with a prominent Supreme Court reporter about the difficulties of being a Supreme Court reporter. But the point is, is that Justices are authors of lofty language about important democratic norms, but they are also operators within a system of journalism, and they haven't always been entirely consistent in those areas.
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B
Renel, can you pin it down a little further for me in your research? Do you have examples of the ways in which I think in your piece you say, like American citizens, the Court seems far less persuaded than it once was that the press has a vital and irreplaceable role to play in American society and governance. End quote. Can you give me some examples, particularly in recent years, even pre trump, of ways in which the Court has become less and less convinced that there is a need for a robust press corps?
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A
Yeah. So people who write and think about the press clause and about media freedoms in the US Often make reference to this period of time, in sort of the 1960s to maybe early 1980s, as the glory days of Supreme Court press jurisprudence. Because it's in those cases that we see a lot of the foundational language about the role of the press in a society, the helpfulness of the press in advancing democracy, the insights that we gain from the press, the need to protect the press even when it makes mistakes. Right to Give it sort of a broad swath and some breathing space in order to make error so that it can continue to engage in the kinds of investigation and this sort of checking function that the press recognized during those eras. And we don't see that kind of language from the Supreme Court anymore. The kind of language that we get from the Court is much more hedged. And to the extent that they do speak about the press in dicta, there are often sort of sideswipes about it. In Citizens United, a case that Americans love to fight about for its more prominent holding about corporate speech and the role of dollars in an election, there is actually a subtext to the Citizens United case that is press freedom. And the reason that this fight comes up in Citizens United is that there's this question about corporate free speech and whether corporations ought to be thought of as speakers. And the obvious question that we have to answer if we're tussling with that is, what about media corporations? And there is a quadrant of the court, it's a minority of the Court, that says, well, media corporations are, of course, different. They're spoken of right there in the press clause. They have an important role to play. And therefore, we don't have to think about media corporations. We don't have to think about media corporations as being corporations. It's not the same context. And a majority of justices in Citizens United rejected that premise and said, you know, the media's not really that special. They're just an entity. They're just a corporation like any other corporation. They don't have any special constitutional rights. They don't have any special constitutional role to play above and beyond any other speaker. And that's a shift. That's a major shift in rhetoric from the Court, from the kinds of things that we saw in the glory days where the Court was really setting out both an expectation that the press would do good work for us and an obligation to protect them as they tried to do so as they engaged in news gathering. And that's not the sort of thing, not the sort of language that we see from the Court anymore. They take fewer and fewer press cases, cases overall in the present era. But when they do speak of the press, it seems to us that the tone has changed, it has shifted.
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B
So, Lisa, this brings us inexorably to Carl Schmitt, a German political theorist that you. His work is at the spine of your paper on Trump. Can you explain who he was and what you referred earlier to this notion of enemy construction and what it is that you are theorizing Trump has sort of appropriated from Schmittian logic and is deploying here in ways that are really different.
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C
Yes. So Carl Schmitt was a German political philosopher who wrote during the Weimar Republic, sort of in the introductory years of Nazism. And he, as a political theory, basically, his ideas were a challenge to liberalism. They were a challenge to the idea of the rule of law.
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B
And.
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And he said that government has two kinds of powers that are sort of essential. Sovereigns have to have them, but that challenge the notion of legality. And one is the idea that the essence of politics, the role of the sovereign, is to identify friends and enemies, to make this foe and friend kind of distinction. And so that's what politics is. It's the definition by the sovereign of who our enemies are. So the identification of these public enemies. And the other part of this is the idea that the sovereign also has to have the ability to deal with public emergencies, emergency conditions, by declaring what he talks about as the state of exception, where normal rules don't apply, where we're outside of juridical norms, and where the rule of law doesn't really have meaning. And so those two things are really, in our eyes, very much tied together, because when you identify enemies and you identify them as an enemy of the democracy and enemy of the people, then the natural inclination, what flows from that is the idea that here we have this kind of crisis, and we need to be able to limit their ability to do this kind of harm by making exceptions to the norms we have about public information, about freedom of the press. And so he reasons from these situations, emergency situations, that really, we can't really contain emergency situations. And so that sort of lodging that there isn't really anything that constrains the sovereign very much also applies in normal times. And I think we kind of see that bleed happening here, too. But a big part of sort of the page that we think that's getting taken out of Schmidt's playbook is this identification of enemies then linked to, we ought to be able to limit what they can do, that we can make exceptions to our norms in order to constrain the harm that that they can do to us. And Trump has been very effective at identifying them as both enemies in the sense of having their own agenda, but also aiding other parties, other institutions, other groups that Trump has identified as being enemies of the people. So, for example, one of the things that he alleged fairly early on was that the media was effectively aiding radical Islamic terrorism, his words, by underreporting terrorist attacks, by not giving them full coverage and that the media was therefore sort of complicit in some way and aiding this external enemy of the United States. So we saw him do that in the context of terrorism, and we've seen him do that in June in the context of family separation at the borders, where he makes these pronouncements that the media is aiding smugglers, the media is aiding traffickers who are bringing children across the border. And, and we ought to be able to hold them responsible for that. And you can see how that kind of narrative suggests that not only the press aren't to be trusted, but they shouldn't have access to information, that they shouldn't be able to fulfill the proxy function that we think they have of being the people at the border who can collect facts, who are given access to detention facilities to communicate to the rest of us what's happening.
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B
So that's, it's a two step, right, Lisa? It's A, the press can't be trusted and, and they lie. But then B, what you're saying, which is I had missed entirely until I read your paper and heard you talk just now, is they are affirmatively aiding and abetting threats to national security. So it's not just that we can't trust them, but they actually want to bring down this democracy. Right? That's what you're saying.
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C
Yeah. I mean, it's really interesting when you look at that language.
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B
Right.
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Because when he's talking about aiding Islamic terrorism, he, he says they've got their own agenda, the press has its own agenda, and it's not the agenda of the American people. And that kind of ominous suggestion.
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Right.
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It's not totally explicit there, but the ominous suggestion that they are actually trying in some way to damage the democracy, to damage our national security. And he's done that in a number of contexts. And it's one of the most troubling ways and one of the most effective ways, I think, that he's painted the press as an enemy and then sort of linked up that we don't have to give them the protections that they have historically had.
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Join Slate Live in Brooklyn just two days after the midterms for a recap and discussion of what just happened. Bring your questions about who won and who lost and what it means for the Supreme Court and the Trump administration and planet Earth. I'll be there with Jamelle Bouie, Jim Newell and Mike Pesca to break it all down. For more information and Tickets, go to slate.com slate live. And now let's return to the Conversation with the authors of Enemy Construction in the Press, law Professors Renell Anderson Jones and Lisa Sun. What kind of pushback have you had to your piece? Do folks say you are simply misunderstanding or that you are hitching your star to this Carl Schmidt character and that this is just, you are simply creating a polarizing relationship between Trump and the press that doesn' exist, or has the academy generally found that what you're descriptively saying, I mean, Renell, you were careful to say you've tried to be objective and fact based. What's been the response out there in the world?
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A
This is Ronelle. I actually think that the response has somewhat shifted. In the early days when we were writing the piece, I think, which were the early days of the Trump presidency, I think there was still a great deal of hope amongst a lot of folks, including First Amendment scholars, that Trump's language was bluster and that there would, there might be some risks in amplifying that bluster. Right. In suggesting that that bluster had any more power, that would be itself problematic. And I think Lisa and I shared that concern some.
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C
Right.
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A
We didn't want to give a platform to language that was nasty but meaningless. That's not the sort of thing, that's not the stuff of which good academic writing is made. But over time, I think we became convinced as we started to gather sort of silos of evidence that we thought might fit into the Schmidt framework, and as we started to think about the true risks of enemy construction overall and the more particular risks of enemy construction of an institution like the press, I think that the piece has actually been really well received. One of the things that I've said recently is that, you know, I've been writing about press freedom and media law for the entirety of my academic career. And for a lot of years, years, it was the sort of ugly stepchild of mainstream First Amendment scholarship. Right. It wasn't that interesting. People weren't that compelled to talk about it. Nobody at a sort of big major academic conference would want to put together a panel about press freedom. It was the sort of thing that I and a handful of other scholars in the country were pounding the pavement about and trying to articulate, articulate the importance of. But that, you know, we weren't getting invitations to be on widely heard podcasts, for example, or quoted, having our research quoted in the New York Times. And I think if you had told me five years ago, right, the New York Times will call you and they will, several times in a month want to talk to you about your scholarship because There'll be so much interest in press freedom, I would have done a dance of joy. But if you had told me the circumstance that would have to come about in order for people to be thinking about press freedom that carefully, I'm not sure that it's a trade off I would have made. I do think, and I think this is a positive development, that both scholars and citizens are starting to think about both the norms of press freedom and the law of press freedom in more careful ways. And I think that's going to be critically important going forward. Right. 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.
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B
Lisa, what is it about modern media and the forms that it takes that brought us to a moment where we are so susceptible to this enemy construction? Yeah.
- [35:33]
C
So I think there are a couple of things. One is that the framers could not have imagined a time, I don't think, in which the President could speak directly to large chunks or even the whole of the American people without the press as an intermediary. And so when we talked earlier about the sort of historical tensions between the President and the press, there were, of course, these tensions, but there was also sort of a recognition that the press and the President needed each other.
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B
Right.
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C
The press needed access to information so they could report things. And the President needed access and respect for the press in order to have them be an intermediary that could convey his message to the American people. And the President didn't really have the capacity to speak directly to everybody or to large chunks of the population. But that's really shifted with technological changes with the advent of Twitter. So the President can get on and speak to a lot of the American public without any intermediary at all, which means he has the capacity and the ability to undermine the press, to cast them as an enemy in a way that simply couldn't have happened in the past because he or she needed the press in a way that just simply isn't true now. So I think that makes the press more ripe for enemy construction. And as we noted in the paper, you know, there have also been missteps by the media and perhaps more partisanship in the media that also have decreased the. The trust that the American people has in the press. It's sort of at historic lows, and that obviously makes it easier for the President to characterize the press in this way. So the press also has less resources to sort of fight battles about what the scope of its freedoms are or ought to be, because obviously we have the decline of newspapers and newspaper subscriptions. And so editors who used to have more ability to go to court and fight a subpoena order or argue for access to a particular forum don't have that anymore. And so that might make the enemy construction easier, but also it certainly makes it easier, I think, for some of these restrictions on press freedoms to come about because we just don't have the resources in the mainstream media that there once were to fight the battles about press freedom to make the arguments that the press free is the proxy of the people not to be in criminal trials and detention centers and federal prisons and have that access and report on things for us.
- [38:06]
B
So that raises, I think, the existential question I wanted to end on if I could, which is this is a problem we've talked about time and time and time again in this show. And it's the marriage of what Ronell said about erosion of norms and quick erosion of norms, but also this question of, of once you've been othered, how do you respond without othering. In other words, you know, we've talked so often on this show about judges can't talk back and, you know, institutions can't fight back and the FBI can't fight back. And it seems to me that the press is another one of those entities that is on the horns of the same dilemma, right? When Donald Trump says, you're a liar, the press can't say, no, no, you're the liar. And we have have this problem now where the press is starting to say, no, you are the liar. It's starting to show up in headlines, it's starting to show up more and more in mainstream media coverage that if you other me, I'm going to other you back. And I worry only because I think it cements the polarization, right? It suggests that if you're going to say, I'm the enemy of the people, my only recourse is to say, you're the enemy of the people. And I don't know that hearts and minds, minds are changed when that kind of discourse is happening. I know this is such a meta question, but if one of you wants to respond, I think, as is often the case when the press is vilified and called the enemy of the people, the press can either say, no, no, we're going to continue to be measured and in the middle, or we're fighting back. And it feels like a lose, lose.
- [39:48]
A
This is Ronelle, and I think that's right. I think that is the major tension of our day in terms of press, president relations. And it's very tricky. If the president declares war against you, the press, your instinct is to say, all right, we're at war, and we'll fight the war back. And it's much less effective. Sometimes it seems to say, no, no, we're not at war. Right. That's a very. That's a very hard position to take, that we don't want this to be a war. We want this to be the ordinary check and balance fourth estate notion that we've always had, which is cooperative endeavor towards democracy that sometimes has some tensions built into it, because that's how checks and balances work in our country. I have two thoughts on this. The first is that we must figure out a way to stave off enemy construction of the press, because enemy construction is a theme of this administration in more ways than just the press. Right. So we see the administration constructing or attempting to construct enemies of entire races or entire religions or people coming across the southern border or other institutions, other democratic institutions like the intelligence community.
- [41:12]
B
Yes.
- [41:13]
A
Right. Even sort of the most conservative traditional institutions. Right. The judiciary. We see several episodes in just the short time that Trump has been president of characterizing the judiciary as the enemy. And it needs to be said loudly and repeatedly that the press is our best shot at staving off those other enemy constructions. Because the press counters misinformation with information. It checks facts, it tells people what they don't yet know. It offers historical context. It provides people information to say, actually, that's not the way we speak about judges in this country. And the reason that we don't is because they are. They're separate from the elected branches in these sorts of ways. It has an educative role. And if the press is constructed as an enemy, if we lose it as a democratic institution, it opens the floodgate to enemy construction in a wide variety of other ways that might be staved off by a useful, thoughtful, democratically enhancing press. So I think it has to be. Of all the enemy construction that's going on that we want to counter, it has to be priority number one. And I think that means things like media literacy campaigns, particularly for. At a civic education level. I think it needs to be our top civic education priority to teach people who are, you know, in middle school and high school about how to think about information, about how to process information, about how. How to choose media sources, about how to choose from how to choose a wide variety of media sources, including those that challenge their own priors. I think that's going to be really important. I also think, secondly, that this battle can't entirely or even primarily be fought by the press itself for all the reasons that you described. This is the sort of thing that good citizens everywhere are going to have to rally behind. There's going to need to be a movement amongst people who are concerned about what's happening to defend the press, to defend it by paying for good journalism, to defend it by supporting organizations like the Reporters Committee for Freedom of the Press and other entities that are engaged in the kind of defense legally of the press when they're excluded from things they ought not be excluded from. It needs to be a part of our national conversation, which is why even after 90% of what we researched and wrote and speculated about became all too painfully obvious, even just to the naked eye of the layperson in this country, we moved forward with this piece because we wanted there to be a conversation about the public's obligation. And I think that's a conversation that we're going to continue to urge.
- [44:06]
B
Lisa, I'm going to ask you the last question and I am hoping you're going to give me a bracing answer. I will confess I read your piece and looking forward so much to the conclusion where you said, here is how it all works out. Awesome. And I think I missed that page or you buried it in a footnote. But one of the things that was worrisome, as I've thought about your piece and thought about the work that you've been doing for over a year, is that you start from the premise that the public is not growing numb. And I, more and more start from the premise that the kinds of attacks on the press that have escalated in the years since you wrote this piece are actually it's just white noise. Nobody is tracking the attacks on the press. We've come to expect it. We've come to totally internalize it. We're in fact, so fully wedded to our own views of who's lying and who isn't, that the opposite of what you predicted would happen or might happen, which is that there would be some kind of reckoning around this issue. And I write about numbness all the time because it's the only way I know how to not go numb. But I wonder if you, with the advantage of hindsight, think that maybe you were too optimistic in thinking that the kinds of things Rene just talked about a bracing public response to, to protect press freedoms. Maybe that hasn't happened and it isn't going to happen. And we're all just going to get used to being in an enemy posture?
- [45:43]
C
Yeah, that's a good question. I mean, I will say when we wrote the piece, we didn't feel particularly optimistic. I mean, our goal was really to identify why we thought this was a critical risk to the democracy and to identify some of the very serious consequences that could flow from from it, like being able to, without very many barriers, engage in enemy construction of all of these other groups. And so we didn't feel particularly optimistic. I mean, we had to acknowledge that, of course, there was the possibility that this narrative wasn't going to take hold firmly or that it would cause a backlash and lots of people would subscribe to good journalism and pay for it. I think it is true. We feel even less optimistic at this moment in time. And I think part of it is sort of the expansion of the idea of fake news and bleeding into, not only like an attack on the press, but the attack on the idea that there are facts, right? That there are objective facts about what's happening at our borders or what's happening on foreign soil and wars. We're involved in the idea that we can sort of discover any kind of truth at all, which is really concerning. And it's concerning in part because we know that as individuals, as the public, we are not perfect consumers of information. Right? There's all kinds of behavioral science that suggests that in many ways we're not that great at processing information. And some of the interesting research that's been done recently in this regard comes out of the Cultural Cognition Program at Yale and Dan Kahan's research that suggests that we're really, really bad at processing information. When facts become sort of signals about your political identity, when they become imbued with this social meaning, you only believe this fact if you are a Democrat. You only believe this fact if you are a Republican. And the idea of fake news and of the media being the enemy just feeds that idea that there aren't sort of facts that can be discovered. There isn't this common ground from which we can at least start to debate and argue and reason about what the social interpretations of those facts on the ground ought to be. And if this research is correct, that once we start to politicize facts, we become really, really poor at updating our own views, at identifying our biases, at just processing information in general, then this politicization of the media and of facts is a really critical threat to our ability to engage in reasoned conversation going forward. And so that's not optimistic. I'm sorry to end on such a downt note. But I think there's real concern there. If we can't have sort of reporters that enough of us trust to identify facts, that we can talk across the aisle, that we can talk to people whose priors are different than us and have a conversation that does change minds and hearts, that works from at least a common understanding of what's actually happening on the ground that is a real threat to reason politics, to reason democracy going forward.
- [48:53]
B
Renell, you now have the opportunity to say that everything Lisa just said was wrong and that P.S. things are awesome. So you go now.
- [49:03]
A
Yeah. I share all of her grave concerns about the state of the democracy and about our capacity to have reasoned conversations as a polity. But I am convinced that these are the sorts of things that education can, if not f at least improve. I've on a very small level, I've seen it happen in my own life where I have sort of forced myself to have both a red Facebook feed and a blue Facebook feed where, you know, friends from across the aisle are saying radically different things about matters of current affairs. And I'm at least forcing myself to be aware of what, what different facts people are bringing to the table and what different interpretations of facts people are bringing to the table and what strong views people hold across the country. And it is the sort of thing I am convinced that civic education matters. I'm convinced that we have poor civic education in this country. But I think that large scale media literacy campaigns that at least target target the well intended among us. Right? At least the well intended among us could become savvier consumers of information and become more critical demanders of information. So part of the biggest, the underlying problem that we see here is that we aren't really demanding substantive executive counterspeech. Right? We're accepting when the New York Times or CNN writes a language lengthy piece citing several sources with a great deal of information about something that's happening in the Trump administration and we are accepting as a response to that a single sort of non responsive retort like fake news or bad or failing, which doesn't tell us anything about the content of that material. Do you think that that source doesn't exist? President Trump? Do you think that that interview does didn't happen? Do you just wish that it didn't happen? Are you asserting something? Are you using fake news in its literal sense, the news is fabricated? Or are you using it in its more common now rhetorical sense that it's, you know, you think it's biased or you think that there should have been other people interviewed. Or you think there's another side to this story. People can demand that we are capable. We've shown ourselves as a country of being capable of demanding things of our leaders. We've shown ourselves just in the last last couple of months as being capable of galvanizing as a people and demanding things that we think are important to who we are as a democracy. And so I'm not wholly without hope that if we talk about this more and if we emphasize it more and if we self educate better, we can stave off the harm that's coming from it at this moment.
- [52:08]
B
Good helpful reminder that there is a reason that journalism is protected in the Constitution and reality television actresses is not. Thank you both. Yes. Renell Henderson Jones teaches First Amendment law at University of Utah Law School. Lisa sun teaches law at Brigham Young University Law School. Their law review article is Enemy Construction in the Press, published in Arizona State Law Journal. And I thank you so much for this really interesting and enlightening examination of the press clause, which we tend to pick our way around and not think about. Thanks for being here.
- [52:50]
A
Thanks for having us.
- [52:51]
C
Yeah, thanks again for having us.
- [52:56]
B
And that's all for me for this specific special press edition of Amicus. If you would like to get in touch, our email, as ever, is amicuslate.com and you can find us@facebook.com amicuspodcast and we love your mail. Today's show was produced by Sara Burningham. Steve Lichtai is our executive producer, and June Thomas is senior managing producer of Slaves Podcast. Thank you so much for listening.