← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Trump’s Tariffs Overturned
01:15:06
Our long national tariff nightmare is over, but do we get our money back?
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- [00:00]
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- [01:26]
Dalia Lithwick
This is Amicus Slate's podcast about the courts and the law. I'm Dalia Litli. Welcome and please be sure you have buckled your seatbelts. This is going to be a hell of a show. We're talking about the big tariffs decision first and then we're going to be tackling the very wobbly press clause of the First Amendment of the US Constitution that is in the process of having its leg kicked out from under it. On Friday morning, the long awaited decision came down In Learning Resources vs Trump, the case that sought to clarify whether the President has the power under a 1977 law called the International Emergency Economic Powers act, or IEPA, to impose sweeping, quote, reciprocal tariffs globally. The tariffs were imposed on goods from just about every country in the world, first Mexico, Canada and China, and then just walloping trade partners around the globe. IPA tariffs represent about half of all the import taxes the government collects every month. Other tariffs were issued under different statutes. They were not challenged in this case. Now, right before this case was argued at the court, we spoke to Rick Waldenberg, he's the CEO of Learning Resources, about why his small family run business had opted to take the administration all the way up to the U.S. supreme Court.
- [02:52]
Mark Joseph Stern
You don't have to be actually one of the great historians to know from recent events that when nobody stands up, sometimes Bad things happen. If you're waiting for a postcard to come in the mail that says, hey, Rick, it's your turn, that's not going to happen. Someone just has to realize it's time to do something.
- [03:13]
Dalia Lithwick
On Friday, the high court, by a six to three margin, agreed with Rick Waldenberg and answered Donald Trump with a resounding no.
- [03:21]
Mark Joseph Stern
They're just being fools and lapdogs for the RINOs and the radical left Democrats,
- [03:26]
Stephen Colbert (clip)
and they're very unpatriotic and disloyal to our Constitution.
- [03:31]
Dalia Lithwick
In an opinion written by Chief Justice John Roberts, the majority declared that the government reads AIPA to give the President power to unilaterally impose unbounded tariffs and to change them at will. That view would represent a transformative expansion of the President's authority over tariff policy. We're going to open the show today with my co host, Mark Joseph Stern, who was furiously reading this fractured, entangled 170 page opinion right alongside me on Friday morning. And he then wrote brilliantly about the decision for Slate. And, Mark, you and I both sort of predicted this right after oral arguments. We saw what we saw. We thought Trump was gonna lose, but we never fully, completely believed ourselves.
- [04:18]
Mark Joseph Stern
I think there's always a chance that the Supreme Court could do the worst thing imaginable in service to Donald Trump. And so even though we had good reason for optimism after oral arguments and it seemed like a 6:3 majority was ready to smack down the tariffs, it was never a sure thing. And you know, Justice Barrett can be kind of cagey during arguments. The chief can change his mind. And yet it now seems there was never really any doubt behind the scenes. Like, this is exactly what you would have expected. After arguments, it is Chief Justice Roberts, Amy Coney Barrett, Neil Gorsuch joining with the three liberals to say, absolutely not. Trump simply does not have this power. And then on the other side, it's a muling and sycophantic Brett Kavanaugh with Alito and Thomas saying, oh, but maybe he does. We think he does. He should be able to impose whatever tariffs he wants. We love this president. He's so great. How could you do this to him? That's barely an exaggeration. We should talk about the dissents. They are sort of an abomination. But this was the court, in a kind of withering way, issuing their abus puke to Trump that we've been waiting for maybe since January 20, 2025, saying, There is still a line. You have tried to cross that line, and we are not going to be afraid or be bullied. We're going to guard the line. And here it's an effort to sort of collapse our separation of powers and our constitutional system into a monarchy where Trump is a king who can just slap whatever taxes on any imports he wants. And the majority said, no, we're not there. At least we're not there yet. We're not there today.
- [05:52]
Dalia Lithwick
And I want to be really clear, because all the questions I've had say this is an incredibly fractured. I don't understand. It's incredibly technical and there's so many parts, and then there's concurrences and dissents, and it's vacated in part and it's remanded in part. But my read is the upshot is what you just said, which is Trump just loses and he loses six, three. And you know, the liberals are not prepared to deploy major questions doctrine. The dissenters are big mad. You know, we could parse all the bits and pieces of it and the technical stuff, but this is just an unvarnished loss for Donald Trump.
- [06:28]
Mark Joseph Stern
I agree and I understand why it's confusing. There are so many separate opinions and arguably too much separate writing by justices on both sides. But the bottom line is that six justices say that Trump's global tariffs exceed his authority under ipa. And they all agree with what I would say is the bottom line, sort of statutory interpretation that the words regulate, which is what AIPA says the president has the power to do in an emergency. Those words just do not encompass the tariff authority. Regulate, importation means a lot of things. It doesn't mean a presidential power to unilaterally tax foreign goods. There's a split within the majority. You just noted it, Dahlia. The three conservatives, Roberts, Gorsuch, and Barrett, use the major questions doctrine to bolster their conclusion. They say, look, you know, we have this rule that when the president is claiming a major power of economic and political, political significance, we really want Congress to speak clearly. We want to see an explicit statutory authorization. IPA is not that explicit here. It is not the kind of clear statement that we would want to see before allowing the president to claim this power. But still, the majority does the kind of basic statutory interpretation that leads to the conclusion that Trump has broken the law. And the liberals join that part of his opinion. And so Justice Kagan, in her separate concurrence, which is joined by Sotomayor and Jackson, she says, look, I don't agree agree with the major questions doctrine. I don't think we need to use it here. But she also says right up top that she agrees with the bulk of the principal opinions reasoning. So there is a very solid six justice super majority here. This is not like the first Obamacare case where you had to count heads and it was like five for this, four for that, seven for this, two for that. This is clearly six, three, tariffs are illegal.
- [08:23]
Dalia Lithwick
I actually also felt that that weird horse trading that happened in Obamacare, that it was really clear that people were kind crossing their fingers and doing deals under the table, didn't feel like there was a lot of, you know, horse trading here. It felt like there was a legitimate question about the major questions doctrine. But this was a 6, 3 that we're just like no. We can find different ways to say no, but we're just saying no.
- [08:48]
Mark Joseph Stern
I agree. And I think what that hints at is that probably the six justice majority firmed up very quickly after arguments. I think at that first conference where they discussed this case, it was clear that Roberts, Gorsuch and Barrett were firmly against these tariffs. And so, you know, we speculated at the time, will the liberals have to sign on to the major questions doctrine in order to get a majority against the tariffs? Will Roberts sort of pressure the liberals into finally endorsing and legitimizing the major questions doctrine by teaming up with Gorsuch and Barrett and saying, look, we might falter unless you are willing to join hands with us and sing from the hymn book of the Major questions doctrine. And it seems like that didn't happen because the three liberals held the line and there is no indication that they ever wavered. Right. They are right there in that separate concurrence saying, we agree with the statutory interpretation, but we are still not on board with major questions. And I think if there had been the kind of horse trading that we saw in the Obamacare case, then maybe, just maybe, Roberts could have forced those three liberals into the major questions fold. But instead they stood in their own camp and it allowed for the three to maintain their integrity and their principle while still reaching the conclusion that we all knew they were gonna reach.
- [10:03]
Dalia Lithwick
Just A side note, CNN's Kristin Holmes reported on Friday that Trump completely blew up during a meeting after learning of the ruling on tariffs. Here's what she said. Quote, he started ranting about the decision, not only calling it a disgrace, but started attacking the courts and at one point saying, these effing courts, but using the actual language there, end quote. So we've known for the last couple of weeks that Donald Trump is not feeling it from his justices. This is actually Like a pretty serious moment to think about Donald Trump making threats against the courts.
- [10:43]
Mark Joseph Stern
I will say I don't think that Gorsuch and Barrett were at all cowed by Trump's bullying. And he has been bullying the justices for months now, right? Saying this is my chief agenda. I should be able to get to do what I want. The law says I can do it. If the court strikes this down, we'll be a poor country. It'll destroy our nation, it'll destroy our trade. I don't get the sense that the three conservatives in the majority cared at all. I mean, Robert's opinion is so crisp and confident and just a classic sort of this is what the law is. No wiggle room. And to the extent that there's like any kind of wavering or disagreement between Barrett and Gorsuch, it's all this academic fight about the major questions doctrine, right? Gorsuch has this almost 50 page concurrence defending the major questions doctrine against the liberals criticism of it. And then Barrett has her own concurrence outlining her view, saying it's more modest, that it's more of a kind of rule of statutory construction, it's not as substantive as Gorsuch says. And the two like go at it like the girls are fighting, even though they're seemingly on the same page with Roberts about applying it here. They don't agree what it is. They don't agree on what the major questions doctrine is. They had their heads in the case books. They were not scared watching Trump make these threats on CNN like their heads were miles away. And I guess I do find that somewhat encouraging because we obviously need a judiciary that can function completely independently of the executive branch and stand up to it when it break the law. And one gets the comforting sense that that is indeed what happened here.
- [12:12]
Dalia Lithwick
It's such a funny corrective mark to our constant complaint that the courts have no idea what is happening across the street and they have no idea the enormity of what the insurrection was. They have no idea of what those flights abroad of asylum seekers like. They just have no idea about anything. And then today it seems that their equal opportunity, no idea of what's going on, Havers. And yet somehow, weirdly, it saves the day. Like if this feels like an existential threat to them, no, they're not having it. They're just gonna do eggheaded judicial construction all day long. And I guess maybe that's a silver lining here. I don't know.
- [12:52]
Mark Joseph Stern
I think it's the most satisfying part of the opinion in a way that they have their heads in the sand no matter what.
- [12:58]
Dalia Lithwick
Exactly.
- [12:58]
Mark Joseph Stern
And there's still gonna be, like, Professor Barrett at the chalkboard explaining the difference between a substantive and a rule of statutory construction, while Donald Trump absolutely fumes in the White House and decides whether to unleash the fury on Barrett, who may never even see what he says.
- [13:16]
Dalia Lithwick
So we do have to carve out the dissenters who very much have their heads in Fox News. But I want to take one minute to talk about the Roberts opinion because it's a pretty clarion announcement that, you know, this exceeds any previous invocation of executive power. This is not what the text permits. This impedes important congressional prerogatives. He says, quote, when Congress has delegated its tariff powers, it has done so in explicit terms and subject to strict limits. Had Congress intended to convey the distinct and extraordinary powers to impose tariffs, it would have done so expressly, as it consistently has in other tariff statutes. Just remind me this is the same John Roberts who wrote the immunity decision and who once believed that text and history and precedent and logic have no quarter here, because this is Donald Trump. So just remind me that's what happened, right?
- [14:13]
Mark Joseph Stern
I mean, yes, but this is where I think we do have to get a little bit cynical. There's a thread that ties this case together with the Federal Reserve case with Trump's attempts to fire Lisa Cook from the Federal Reserve Board of Governors. This case and that one both drew a lot of concern from the business community, from the corporate world. The Chamber of Commerce filed a brief in this case saying, please strike down these tariffs. Like the corporate interests are aligned against the tariffs. Just as in the Lisa Cook case, they were aligned in favor of the Federal Reserve's independence. And I think it's very clear if we're searching for a hard limit on Trump's powers, when the Chamber of Commerce thinks there should be one, this court listens. Now, I don't wanna say that that's entirely the reason why Roberts wrote this. Excellent opinion. He walks us through the logic very compellingly, and I think it's pretty straightforward. The Constitution assigns the power over tariffs to Congress. The FR were very clear that it should lie primarily with Congress. Congress can delegate that to the executive branch, but when it does so, it does so in limited ways. And very clearly, that's not the statute before us here. That's not ieepa. And in fact, the president still has some authority to issue tariffs. It's just under statutes that are designed to let him impose tariffs that have Real limits and restrictions. So I think Roberts is being both a good jurist and a sensible person here. I wish he could have been that in the Trump immunity case as well. But the stakes there were sort of, can Trump escape prosecution and storm back into the White House in 2024? And the stakes here are, can Trump now in the White House crash the economy? And if you want to be really, really cynical about it, then maybe Roberts, Gorsuch, and Barrett wanted Trump to come back to the White House, but didn't want him to then crash the economy. And look, now they get to have their cake and eat it, too.
- [16:02]
Dalia Lithwick
So, Mark, now I need to give you an opportunity to talk about the dissent, both because you do so magisterially, if I may say so, in your piece, and also because they are oh, so bonkers.
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Mark Joseph Stern
I mean, look, we have a rule against too much hypocrisy policing on this show. But they are so hypocritical because you have Brett Kavanaugh here, who has staked his career on the Major Questions doctrine since he was on the D.C. circuit. Like, this is his jam saying, oh, surprise, surprise, the major questions doctrine doesn't apply to foreign affairs, period. So we just don't have to. This very important rule that Kavanaugh himself invoked to strike down so much of Biden's agenda, including student debt relief and climate regulations, but here, when Trump wants to use it for tariffs, it magically just sort of disappears. I think that is indefensible. And for the reasons that Roberts lays out, if we're gonna have a Major Questions doctrine, it surely must apply to foreign affairs and tariffs in particular, which are core congressional power. But beyond that, like, his statutory interpretation is just, just bad. It's just like one L would get a C minus on this bad. He says that regulate importation, like, clearly encompasses tariffs, even though Congress has literally never, ever, ever, ever used the word regulation to authorize taxes or tariffs or levies or duties or anything of the sort in the entire history of this country. I understand that if you isolate those words and kind of pluck them out of context, you can make the argument, if you really, really squint, that a regulation could encompass. But for all the reasons that Roberts lays out, that is not the case here. That is not how Congress has used the word. And so, you know, if Kavanaugh is going to be willing to stretch language beyond its breaking point in order to authorize these tariffs, why not for Biden in student debt relief? Why not for Biden with his clean power plan like why do only Republican presidents get the benefit of the doubt in these statutory interpretation cases? And I have to believe it's just because Brett Kavanaugh is becoming Samuel Alito 2.0. And in some ways this is his debut as the hackiest hack who ever hac other than Alito.
- [18:13]
Dalia Lithwick
But now do Thomas, please, go ahead.
- [18:17]
Mark Joseph Stern
It's worse.
- [18:18]
Dalia Lithwick
It's worse, listeners. He's holding his head. Okay, go ahead.
- [18:22]
Mark Joseph Stern
Because Thomas has for years endorsed this thing called the non delegation doctrine, which is like the major questions doctrine on steroids, which is the idea that Congress cannot delegate away its core powers, period. So Congress just simply cannot delegate authority to the executive branch. It has to exercise them itself. Thomas is the king of the non delegation doctrine. He is the one who like summoned academics and other judges two decades ago, more than two decades ago, to bring him this argument. He has honed it, he has fine tuned it, he has embraced it over and over again. And he abandons it in this case because he announces a brand new exception to the non delegation doctrine that he himself has bear hugged for years, which is that it does not apply to when the President is exercising former, quote, powers of the crown. So when the President is exercising powers that the framers would have understood the king to be able to exercise in Britain, the king that they rebelled against and fought a revolution against in order to no longer have a monarchy, that when the President is exercising those king like powers, that Congress can delegate away all of its authority and there's no constitutional issue. And then he says, surprise, surprise, that tariffs do not fall within the core legislative power and instead fall within the powers of the crown. And so Congress is completely free to delegate away all of its power over tariffs to the President and he can wield that power however he wants. This is directly contradictory to everything that Clarence Thomas has ever said about any of these subjects in his entire career. And it is impossible to read as anything other than complete surrender to Trumpism and a total fusion of Clarence Thomas's work with the MAGA Project.
- [20:07]
Dalia Lithwick
I have to ask you this question because I think it is the sticky wicket here. And that is the remedy. According to Reuters, there's more than $175 billion in U.S. tariff collection that needs to be refunded. What does the opinion have to say about that? I know your boy Brett Kavanaugh had a lot to say about that.
- [20:28]
Mark Joseph Stern
I guess we do have to give Kavanaugh this one thing like he raises the concern about refunds. The majority does not address it. To be clear, the plaintiffs who brought these cases before the court. The Trump administration has already said that they would pay back the money that these particular plaintiffs have already paid in tariffs if they won. So these few parties will get their money back. But of course, they are a tiny fraction of all of the companies that have been paying tariffs since Trump started imposing them. And so the question remains, well, what about all of those other companies? Will the Trump administration voluntarily just pay back hundreds of billions of dollars in tariffs that is collect? Will the companies have to go to court and sue to get back the money that they wrongly paid under an unlawful interpretation of this statute? We don't know. The majority doesn't say so. And I think, like, in some ways that's probably okay because the answer will just be that the lower courts will allow suits and the suits will be successful and everybody will get their money back. I think that's what will happen. But it is a real wrinkle here. And I think that, that if I were the chief and I were writing the opinion, I would probably say more than zero words about it because it could dominate the news and the economy in the coming months. And it's a little bit mysterious that it's totally absent from the opinion.
- [21:49]
Dalia Lithwick
Yeah. And I guess also just, you know, to go back to the earlier point you were making, this is a court that decided to be eggheaded and doctrinal and just like, live at that chalkboard covered in dust. And so there's a certain elegance in being like. And some we don't care, which is why when Kavanaugh's like, this is a mess. It's incredibly enervating. But in this particular case, it is dealable with able theoretically, and it will get dealt with. But it is not an elegant solution from the court that absolutely is well aware of this as a problem. It came up a lot at the oral arguments and maybe important to flag here that, yes, this is doable and that a lot of big corporations and heavy hitters will eventually see themselves made whole again. But, you know who doesn't get made whole? All of the consumers who have borne the brunt of these tariffs for almost a year. I have to ask you one last question, which is the other question that I think is on everyone's minds. What's going to stop Donald J. Trump from simply abusing and annihilating a different statute to try to reimpose exactly these tariffs tomorrow?
- [23:00]
Mark Joseph Stern
So, look, there's a chance they're going to pour over the US Code and find some other vague statute and claim that it allows them to impose unlimited tariffs. I don't think that they will. I think that this opinion walls that off. If they try, they will get shot down very quickly. What they will probably do instead is use the tariff statutes that explicitly authorize these taxes to try to impose some tariffs on the countries that they are angry at. But those statutes are quite narrow. They require a set tariff below a certain rate for a certain amount of time, not years, not indefinitely. They only apply to certain countries under certain situations. There is no way that Trump can come close to imposing, imposing like the same amount of tariffs under any other statute that he tried to under aipa. So I'm not particularly worried about that. And I think that Trump is going to have to make some kind of pivot about tariffs at this point and either issue those narrower tariffs and try to claim victory and say, oh, well, this is what I wanted all along, or maybe, just maybe, give up on an idea that every mainstream economist says is terrible for the economy and has for years and decades before Trump decided that for some reason, this stupid, stupid policy would be the signature agenda item of his second term.
- [24:14]
Dalia Lithwick
Yeah, I think we could end on that note. You know, you pointed out this is a huge win for the chambers of commerce. You know, we saw what happened to the stock market. This was essentially the signature catastrophic failure of Donald Trump's second term. And John Roberts just saved him from himself. So you kind of wanna say take the L, Donald Trump, because this was taking you nowhere. Right. So it is, again, we class this under huge win for checks and balances and democracy and an independent judiciary. All of that incredibly important. But if Donald Trump could stop ranting about the courts long enough to realize that the court just gave him the gift of saying, oh, well, my hands were tied and I lost on this issue that I was going to lose on and continue to lose on because everybody stinking hates it. That's kind of the place we're at, right?
- [25:08]
Mark Joseph Stern
Could be a gift, could be an off ramp if Trump is smart enough to take it, which he probably isn't.
- [25:13]
Dalia Lithwick
Mark Stern, you are, as ever, a blessing from above. Thank you so so much for just being here on a dime to chew this over.
- [25:22]
Mark Joseph Stern
Always a pleasure, Dalia. Especially on today. We don't get many days like this, so let's enjoy it.
- [25:26]
Dalia Lithwick
Yeah. Little happy dance, Lil Amicus. Happy dance. Thanks, Mark. There has been a lot of buzz about tariffs as the biggest case of the year because, of course, it has the words billions and dollars in every headline. And that's likely true for several of the justices. But it has long been our position on amicus that if you're an asylum seeker or an immigrant or a US Citizen swept up in a DHS raid based only on the language you are speaking or the color of your skin as a result of a shadow docket decision that authorizes so called Kavanaugh stops. Tariffs aren't really the headline you think they are. Same for the shadow docket decision that allowed for the deportation of migrants to third countries without due process or notice, despite the potential for torture and death. Or if all your cancer research funding was scuttled because of a different Supreme Court decision this year, the billions and the dollars went quite in the other direction. So we continue to keep our eye on the stakes and not just the horses. And so we're going to now turn to a fundamental freedom, one democracy truly depends on, that is being warped and hollowed out by billions of dollars. It's the First Amendment's foundational press clause. We think it's just as important as tariffs, and maybe that's a minority view. That's after the break.
- [26:51]
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Dalia Lithwick
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Dalia Lithwick
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Dalia Lithwick
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- [30:14]
Dalia Lithwick
American journalism has suffered a series of icy shocks to press freedom since Trump returned to the White House. Entire news organizations banished from the Pentagon and the White House, journalists arrested and charged for doing nothing more than document protests, late night shows pulled off the air for jokes the administration doesn't like. A Washington Post reporter's home searched and her devices seized. Last month and this past week, an interview with a Democratic politician from Texas was barred from the airwaves by a network whose ownership is trying to curry favor with the White House. Sometimes we talk about free speech and the freedom of the press as though they are the same thing. But the press remains the only profession protected in the United States Constitution. When billionaires purchase storied newspapers and fire a third of the staff, that's a body blow not just to free speech, but to core values of transparency. And when Americans stop trusting the press and start to trust algorithms and AI Democracy cannot possibly survive. America's democracy problem is also America's media problem, but we fairly consistently fail to assess it as such. So I'm joined by two leading scholars whose research the Future of Press Freedom, Democracy, Law and the In Changing Times is a vital read for anybody who cares about this battered pillar of democracy. Sonya west is the Otis Brumby Distinguished professor in First Amendment Law at the University of Georgia Law School and a longtime friend of this show. Hi there, Sonya.
- [31:54]
Sonya West
Hi, Dalia. Thanks for having me again.
- [31:56]
Dalia Lithwick
And Renell Anderson Jones is a University Distinguished professor and the Lee E. Teitelbaum Chair in Law at the University of ut. She's an affiliated fellow at Yale Law School's Information Society Project. Hi, Renell. Good to have you back. Hi. And I want to note that both Renell and Sonya have been visiting research fellows at the Knight First Amendment Institute at Columbia University, where they have done so much work on this issue of the Press Clause under threat. I think I wanna start with you, Sonia. Whenever we talk about the First Amendment freedoms, we always tend to sort of trip over the press clause and race, to speech and assembly and religion. And the press clause is actually its own unique bulwark against tyrannical government. The Framers certainly believe that to be true. And yet I think it's very hard for us to identify the press as a unique, protected profession within the whole panoply of other, better, funner rights that are laid out in the First Amendment. So can you walk us what it is the Framers were thinking about when they named us and said, you're special?
- [33:11]
Sonya West
The Constitution, the First Amendment, very explicitly says that among our other wonderful freedoms that we have in the First Amendment, we have explicit protection for freedom of the press. It is right there. It is textually as clear as can be, and it is a neighbor to the freedom of speech, which is a freedom we hear a lot about. It's a freedom the Supreme Court has spent a lot of time talking about. And yet for some reason, the freedom of the press press just has not gotten the same kind of attention. I often refer to the freedom of speech, particularly for the Supreme Court, as the Supreme Court's favorite child. It is the child that it loves to lavish attention upon, that it loves to give gifts of great powers to do amazing things. Meanwhile, we have the press clause, which is the neglected child. It is the one standing quietly in the corner that the Court never talks about, increasingly never talks about anymore, does not imbue with wonderful gifts of powers to be able to do wonderful things to make sure we all have this important protection of freedom of the press. This is perplexing if you look at the history, because the framers were not exactly clear to us about exactly what they meant when they were giving us this right of a free press, but they were extremely clear that they thought it was incredibly important. James Madison referred to it as one of the three great rights that he considered protected in the Constitution, sort of higher even among others. It was far more prominent in the discussions in the Constitutional Convention and in early state constitutions than freedom of speech. Nine out of the 11 states that adopted revolutionary constitutions included protections for freedom of the press. Only one included protections for freedom of speech. When it came to creating this new government, to rebelling against and pushing back against restrictions that we had experienced under English common law, press freedom was seen to be essential. And it was not just an individual right, but a structural right. We saw it repeatedly called a bulwark of liberty. It was meant to push back against government power, against power of all kinds, to empower the people to govern themselves, to be informed in a way that will allow them to effectively self govern, and something that is different than how we think of free speech today. And yet over time, it has blurred with freedom of speech into sometimes this concept of free expression, but increasingly just disappeared. And we just focus so much on this concept of free speech, but without thinking about, about this really important and unique role of press freedom.
- [35:46]
Dalia Lithwick
Renell the two of you wrote this very prescient article in the New York Times in 2017. The headline of the piece was Don't Expect the First Amendment to Protect the Freedom of the Media. And I think you both warned that we believe, as we believed about a lot of things, that there was this robust set of rules that were made of iron and steel, that they're not rules, they're actually a series of soft norms like so much else. And you wrote that nine years ago. So I guess my question to you is, was the first Trump administration as rough on the free press? Were they as violent to the idea of the media? I know Trump talked that way, but systemically, were the attacks on the free press as serious then as what we're seeing now, or did they learn from the clown car version of attacks on the press that we saw in the first administration, and now we're seeing meaningful attacks that are also just against soft norms?
- [36:50]
Renell Anderson Jones
Yeah, I mean, it definitely is the case that we see both a combination of escalation from the rhetorical delegitimization, the kind of vilification piece of the playbook that was happening in the first term to other components of a playbook. So there's still the rhetorical, rhetorical delegitimization, things like the quiet, piggy rhetoric that we're seeing now. But I think that the components of the playbook have escalated from laying the foundation for that rhetorical delegitimization to larger institutional incapacitation and financial strangulation and regulatory obstruction, access restrictions, the sorts of things that we didn't see. I think it is important to recognize that all of those components are probably best seen not as isolated acts of hostility, but pieces of a coherent project, like a series of orchestrated tactics that are probably designed to erode the press's access and independence and capacity and legitimacy. And we're in a different phase of it now than we were in then. Those attacks on the media during the first administration and throughout the second and third campaigns, they were already more significant than we saw from other presidents and other public figures in American history. But the pivot that we've seen in the second administration has domestic and international press freedom scholars really concerned because they are more of a pattern of sort of lawfare and economic pressure against the press and weaponization of previous independent bureaucracies against what seemed to be disfavored media. And the fact that we didn't have hard law to protect against this allowed the first layer of vilification and incursions are now putting us in a place where a lot of folks are scrambling to figure out what to do about the harder push that we're now experiencing.
- [38:56]
Dalia Lithwick
Sonia, I think we have to talk about Stephen Colbert and cbs. I think in an attention economy, he probably wins this skirmish. Right. But I think that those regulatory and structural attacks that Renell just referenced are being deployed now. And Colbert told his viewers this past week that not only had CBS bosses told him not to air an interview with Texas Democrat James Talarico, who's seeking his party nomination to run against John Cornyn for the Senate. Senate. But that the network lawyers also told him not to talk about the fact that he had been given this guidance, I think, is the word he used. Well, here's how that went.
- [39:45]
Stephen Colbert (clip)
I'm not a lawyer, and I don't want to tell them how to do their jobs, but since they seem intent on telling me how to do mine. Here we go, fellas.
- [39:55]
Mark Joseph Stern
Fell,
- [39:59]
Stephen Colbert (clip)
I am well aware that we can book other guests. I didn't need to be presented with that option. I've had Jasmine Crockett on my show twice. I could prove that to you. I could prove that to you. But the network won't let me show you her picture without including her opponents. So I'll have to show you this picture of Donald Trump and Jeffrey Epstein instead.
- [40:24]
Dalia Lithwick
So this is thanks to the network's, at least to me, pretextual sounding claims about the equal time rule. And Sonja, if you can just explain to us what the equal time rule actually is, how it has been operative for most of my career as a journalist and what it's being used to do now.
- [40:50]
Mark Joseph Stern
Sure.
- [40:50]
Sonya West
The equal time rule is a regulatory rule, comes from the FCC suggesting that going back to sort of times of the broadcast airwaves, a concept that the broadcast airwaves belong to the people as a whole and therefore there should be some interest that the public might have and how they're used. And so the idea was going to be that if someone who has a broadcast license is going to give a certain amount of time to one political candidate, they should give equal time to the other. This often, I think is an issue when it comes to selling advertising time, that they can't just sell advertising time to one side without having equal opportunity. This was sort of back in the 70s with President Ronald Reagan, there was a big move away from this to suggest that this was too restricting, it was too much of a regulation. And the government really walked away from this and really lightened the regulations, which led directly and explicitly to the rise of right wing talk radio, where no longer did those broadcast stations need to give equal time. Rush Limbaugh did not need to give equal time to another side. So we sort of walked away from this, particularly in anything that seems to look like news and a pretty broad umbrella that included talk shows, even though their comedy can have sort of serious ramifications for that. Only very recently, the Trump administration, which very famously does not like late night TV shows that overwhelmingly make jokes at his expense, has started to say that this exception to the equal time rule should not apply to late night talk shows. And so we started to see some pressure coming from the fcc. It came to cbs, which is increasingly willing recipient to wanting to bow down to the pressures that they're getting from the Trump administration. And so this all led to, according to him, him being explicitly told that he could not run that interview, or at least not without giving opposite time. You know, I did just want to add on to what Renell was saying and sort of your question about second term Trump versus first term Trump in that we are absolutely seeing, seen this escalation they have learned their lessons from what they did during the first term. And what they did during the first term was serious. We had never seen anything like this, that even though presidents privately, they don't like the press, they are an obstacle to the things that they are trying to do. The Obama administration didn't like the press, but they still felt an obligation publicly to talk about the value of a free press, to say that, of course the free press should have freedom to do their work. Of course, we need to respect what it means to have a free press. So when President Trump in the first term came in, having a sitting president call the news media the enemy of the American people, that was very serious. And the amount of insults and sort of more light form threats that we started to see, and we did get some reporters kicked out of the White House press pool. There were some real tangible things, but for the most part, it was a lot of talk, a lot of insults. But it's a delegitimizing role that's coming from the highest bully pulpit that we have in our country. It was very serious. Jump ahead to Trump 2.0. And we're seeing that tangible talk, which is still there, of course, now turn into real action. Right, Right. They have cut off funding for public broadcasting. They have shut down Voice of America. They have kicked major news organizations out of the Pentagon. They have taken away the right of the White House Correspondents association to decide who is going to be in the White House press pool. They are arresting journalists who are trying to cover immigration enforcement. And then, of course, the fcc, they got Jimmy Kimmel pulled off the air for a week. They got Stephen Colbert to not run this interview that they didn't want to run. And these are sort of the big profile things that they're doing. They're smaller things as well. There's littler news organizations that have much less power. They threatened to investigate a radio station in Northern California because it reported on some planned ICE raids. They're wielding this power in all sorts of ways that we really are seeing get very tangible results that we did not see in the first term.
- [44:49]
Dalia Lithwick
That's such a great segue. Actually, Sonya, to my next question, which is, is the Streisand effect? Right. There's a smug, hey, you know, it turns out, if the data I saw is right, that eventually seven times as many people saw that Colbert interview on YouTube than would have ever seen it on CBS. So, ha, ha, ha, suck it, equal time. The beauty of having a decentralized, you know, unregulated press outside of the major networks is that, you know, a Thousand flowers, as you just said, Sonja, that works if your name is Stephen Colbert. It doesn't work if you are some tiny press entity that has just had the cord cut. And I guess in some sense, for now, the question is, even if the equal time rule is obsolete, and even though this is selective enforcement of the equal time rule, it doesn't make a difference. Because in some sense, this massive, massive deregulation of the area air waves just means that we're all sort of fumbling through the dark.
- [45:55]
Renell Anderson Jones
Anyhow, I think that's right. And I think that the story goes to illustrate a much wider point that we're all trying to come to grips with in the press freedom space, which is the range of federal regulatory pressures that are or potentially can be leveraged by the executive branch. And this is true not just because this is an executive branch that is significantly greater incentive to do this sort of thing or is willing to politicize agencies that were previously sort of sheltered from that politicization. It's also because we have this system where a lot of those regulatory pressures are bound up in the way that the media is built. So pressures that you might not even think of as being press free to lawfare avenues turn out to be right. Mergers and acquisitions and immigration law, and as we've been talking about broadcast licensing rules, but you know, tax law, a whole slew of corporate pressures. We've seen settlements in cases that have been brought by the President against news outlets or individual journalists on defamation claims or on claims that are essentially defamation claims, but are dressed up as other kinds of claims, like consumer fraud claims or election interventions, interference claims. But at their root are really focused on concerns that the President has about content that was unfavorable to him and editorial decision making. Right. Things that would be entirely unheard of before this administration. They're just fully unprecedented and they're settling and settling for millions of dollars. So we have media companies across the country that are now the primary funders of the Trump Presidential library, for example. And it isn't because the law is not on their side. It's because these other regulatory pressures exist in the background. And this feels, you know, not so much like the elimination of a free press as the capture of it. The law is on the press's side, but executive leverage and corporate structure, the sorts of things that have haunted press freedom and media studies scholars for a generation. The lack of public interest protection and hyper commercialization and weak and vulnerable, vulnerable public media and this kind of just over reliance on market forces to deliver good investigative journalism in the public interest. All of that combines in a way that leaves a million touch points of vulnerability. And it just feels at this moment like all of them are being targeted.
- [48:36]
Dalia Lithwick
So that's a really smart way of saying that there is the official pressure and then there is the, the chilling. And the chilling is real. And those news entities that aren't feeling, you know, the hot breath of Brendan Carr on the backs of their necks are still feeling terrified. And it's really difficult to quantify that or to explain how that works. It's just in the ether. More in a moment with Professors Rene Anderson Jones and Sandra. This episode is brought to you by
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Dalia Lithwick
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- [50:54]
Dalia Lithwick
And we are back talking freely about press freedom with First Amendment scholars Sonya west and Renell Anderson Jones. I did want to move from the headlines to talk more broadly about where we are and where we're headed and what to do. And your book, which was published by Cambridge University Press this past summer. The future of Press freedom lays out, I think, a pretty solid introductory diagnosis of what we are sitting in right now. I'm gonna read you to you for one quick second just so that we're all on the same page. You note in your introduction, production, quote, government officials are increasingly targeting the news media directly in calculated attacks aimed at undercutting its legitimacy. At the same time, traditional news outlets are vanishing before our eyes, leaving an information vacuum that other communicators like social media influencers, corporate agents, purveyors of political propaganda are rushing in to fill. The rise of artificial intelligence introduces additional complexity, blurring the lines between human created and machine generated content. I could actually just read the entire introduction, but I guess that's not useful. But Sonia, I want to just note, these are not purely Donald Trump problems you laid out. This was well on its way to happening and with it the mistrust of the media. That has been the absolute outcome of all of this.
- [52:18]
Sonya West
You're right. This isn't just a Donald Trump story. Donald Trump walked into a situation that was already quite dire for the news media and then is taking real advantage of that. And I think we can't tell this story with also not talking about talking about money and the economics of journalism because we have had a complete breakdown of the pricing structure of the economic model that supported journalism for most of the 20th century, which I think leads us to sort of what many people at least of a certain age used to think of, of what journalism was. I mean, I think it's hard for us to believe, but back in the 19, I think it was 70s, Rupert Murdoch, who owned several newspapers, once referred to the ownership of his newspapers as owning rivers Gold. They were that profitable. It was such a great time to be in the news business and it was extremely profitable. And that made the news very powerful, right? They had money. They had money to do all the things that we want the news to do, which includes things like hiring reporters and running international bureaus. But it also meant they could fight lawsuits and that they had this power even over politicians, because they were the medium by which politicians needed to have some kind of relationship in order to get their message out. This was before Twitter, right? This was before they could just go on YouTube or Instagram with their own straight to the people messages. They had this codependent relationship. So the media was so powerful and, and we had a time and again, your younger viewer, your younger listeners won't believe this, but you could live in a relatively medium sized town and you could have a newspaper delivered to your doorstep in the morning and a completely different competing newspaper delivered to your doorstep in the evening. With multiple local radio stations and everyone trying to cover the same news, that is just gone away. Obviously, the Internet is the problem. It destroyed the ad revenue model for it. Newspapers and other media outlets quickly learned that subscriptions is not going to fill that void because people have come to a place, rightly or wrongly, where they feel entitled to having the news for free. And so it's just this huge problem. And so what we have seen is a complete destruction of local media. In particular, it is banished. And we do have a few remaining strong national media outlets. But this is where what Renell was talking about becomes even more imperative. Because those local, smaller, even regional news outlets need these big, profitable media organizations to be strong for them to fight the fights, for them to stand up, for them to go to court, to make sure that we have good, strong legal precedent to the extent that we can have it. And when they fail to do that, when they are folding just because they want to take money and turn it into more money, that's been very distressing. I think it's been one of the most upset things that those of us, even in the news media legal space, have seen happen. We did not expect it to happen this fast. Traditionally, they fought those fights. There was a time when we had many, many Supreme Court cases because they would fight it all the way to the Supreme Court. They would throw whatever money they needed to throw at it. So what we have, when you take it as the big picture, is a very, very weak news media ecosystem. Despite the fact that the New York Times might be making money. People need to remember that. And that is the space that Donald Trump jumped into, which is leads to our book. There was a time when perhaps the news media didn't need legal protections that strongly. They had other levers of power that they could pull, other ways that they could protect themselves and get their work done, even without necessarily always having the law behind them. That is gone now. And people are turning to see, oh, what is all this legal precedent that we have? And learning that while we have wonderful free speech legal protections, so once a news organization chooses to broadcast or publish a story, they have very strong legal protections. Generally, the rest of the unique work of the press, typically news gathering, typically doing the work to gather news and everything that goes in, up until you hit publish on that story, that part has very, very weak protections. And we're suddenly finding a number of news organizations who are looking around and realizing the law is not as strong, the footing of the law is not as strong. Just at the timing needed the most,
- [56:34]
Dalia Lithwick
this is ultimately a show about the Supreme Court. That brings us to the Roberts Court. And you all flicked at this earlier, but you note in your introduction, recent data shows that the US Supreme Court may be on its way to abandoning the concept of freedom of the press altogether. But long before the Roberts Court, as you said, Sonia, we thought that there were robust, meaningful protections for a lot of the work of the press. It turns out that was ephemeral at the best of times. Can you give us a sort of quickie survey, Ronelle, for those of us who really believe that somehow the Supreme Court has always been in the tank for journalists in journalism of the wending path and where it seems to be going now, because that's a pretty dire warning if the current Supreme Court might be willing to do away with what's left of that.
- [57:29]
Renell Anderson Jones
Our empirical work on this does not tell a happy story. We did a large scale study that investigated all of the Times that the U.S. supreme Court has spoken about the press in any setting since the dawn of time, since the beginning of the U.S. supreme Court to present, and found that references to the press are waning and particularly that positive references to the press are waning. Particularly distressing. We found that sort of contrary to conventional wisdom, I guess this is how happening, regardless of ideology, of the justices of the Court, such that although the conservative justices on the Supreme Court have quite famously launched significant campaigns against some core pieces of press freedom, most notably in this space, Justices Thomas and Gorsuch have suggested that there ought to be a reconsideration of New York Times versus Sullivan, which is very much the kind of anchor of modern press freedom jurisprudence. The case that it says that public figures and public officials who want to sue for defamation have a much higher bar that they have to clear constitutionally for doing so, that is that we're protected in our criticism of them. That's a piece of precedent that is valuable to all of us in our discussions on matters of public concern, but is an especially valuable and much used protection for the press. There is rumbling at the Supreme Court that some of those basic things that we would have thought of as, as anchors, as untouchables, as foundations that really set the US and its First Amendment doctrine apart from the rest of the world might be under attack. The kind of good feeling generally that you were referencing for why we have a sense that the Supreme Court has always broadly rhetorically been supportive of the press is rooted in a lot of rhetoric that we got in doctrine over the years. If you just sort of look at the kinds of things that Supreme Court case law had said about the press and the press function, there's a lot of language there that resonates. Right. The Court has repeatedly acknowledged in a really wide variety of cases that the press is out there acting as a proxy for us. Right. That we have all kinds of constraints on our time and our space and our knowledge and our ability to keep up with things, that they're out there doing the hard work of finding out what's happening in our democracy and passing along the information to those of us who can't do it. And the Court uses all kinds of words for performers of the press function. That there are surrogates and our agents and our servants and our representatives. And that really casts press freedom not as a right that belongs to journalists or news gatherers, but rather as a right that belongs to all of us, that it's central to the health of our democracy and that we have to protect them in order to do this. The problem is, is that we just don't have a, a great deal of hard law that has built up around this and particularly don't have great hard law that protects that proxy function. So as Sonia was saying, we have this sweeping speech freedom that we can all invoke in terms of our capacity to publish and share our views. But in news gathering rights, it's really, really spare. And those are places where an all or nothing approach just will not work. If, for example, we need someone to act as the eyes and ear of us on the ground of a protest or in a detention facility, or only a few people who should be allowed to cross a police line or should be allowed to have special access rights, you know, during COVID exceptions to be able to be out and about when the rest of us can't be in order to keep a check on our government, while also recognizing that those few entities that are really acting as proxy for the rest of us should have special rights. That doctrine hasn't really been built out. And the data that we're gathering suggests that there's very little appetite at the Supreme Court for building it.
- [61:46]
Dalia Lithwick
You said this already, Sonia, but it's worth saying again, when you have Big Tech working with the administration to disassemble the free press you described earlier, that's actually an attack that's kind of coming from, from within. And I guess I should note that Big Tech companies are famously not subject to regulation or constitutional constraint. So this is another factor, right, that we are not looking at the constraints on going after the press the right way. If we're not factoring in, you know, you're sort of saying follow the money, but it's also follow the frame fact that people are getting their news from TikTok and from videos they see on Instagram. And that's not an attack. That's coming from a place that we anticipated. How well are we dealing with that in thinking about this?
- [62:48]
Sonya West
Not well. So like with so many things, I think news organizations have this unhealthy, codependent relationship with big tech. Big Tech is simultaneously stealing their ad revenue and at the same time become necessary platforms that they need in order to reach their viewers or their readers. And then the other side of the aspect is the viewership. So you're right. We have turned to a world where increasingly people don't turn to the actual news outlet itself to get the news, but rather gets it in these sliced up snippets that are delivered to it by algorithms. And that takes away a key aspect of the journalistic role, because the journalistic role is complicated and multi layered. And it includes not only gathering information, but also preparing it and presenting it in a thoughtful way with the help of experts, with the help of context and prioritizing. Right? It used to mean something when a story was on the front page. It used to mean something when it was above the fold on the front page. These were editorial choices that were made by trained journalists to help us understand what was important. And now those kinds of editorial decisions are not made by trained journalists, but they are made by algorithms whose goals are not to ensure that we are a well informed public, but rather to ensure that they can garner as many of our clicks as they can. So that is concerning. So how we get our news, how we reach our news. And it's all tied in also to this other concerning trend, which is that of the declining public trust in the news media. Riddle and I are very open to the idea that there are reasons that people's trust in the news media has declined. We see those things too. We're not unaware of that, but nothing. Nonetheless, the drop we've had in Americans confidence in their media is enormous. We have seen this just plummet from a place in the 1970s where well over two thirds of Americans expressed they had strong confidence in their news media. Now it's roughly around a quarter who will say they even have a fair amount of trust. A Pew report said that it's roughly equal numbers of Americans who think the press hurts democracy as those who think the press helps democracy. So we have this absolute growing distrust from the public in our news media. It's partisanly polarized. People who identify as Republicans very strongly distrust the news media, whereas Democrats, while their amount has gone down, it has not gone down as significantly. That introduces a whole new host of problems in terms of how we talk to each other, how we engage in public debate. So yes, the tech companies have again just scrambled this whole system that while flawed, certainly still had worked for us in a way for quite a long time that we just have not figured out good solutions on how to overcome these problems.
- [65:40]
Renell Anderson Jones
This is Ronelle, I just wanted to chime in to emphasize how this confluence of not just legal but real world threats matters for the centerpiece of our democracy. Press freedom. Backsliding and democratic backsliding run hand in hand. And among the things that are sort of most concerning about this new dynamic where there are just so many actors out there engaging in Republican repeatage and almost nobody left to engage in reportage, is laying the foundation for us to lack a shared knowledge base of the sort that you have to have in order to operate a healthy system of self government. You have to be able to have some basic agreement about the facts so that you can move on to have the kind of very healthy disagreement about what to do about those facts. And, and I think a big piece of the problem that we have here is that we don't have either governmental support for the press function or meaningful public support for the press function. We laugh at this story, but it's like gallows humor. When we published that op ed about press freedom the first week of the first Trump administration that we were referencing earlier in our discussion, Sanjay, Sonia and I got so many messages from people who we knew who said, I'd really love to read your piece, but I, you know, ran into a paywall and couldn't read it. And we've sort of like the, the irony of, you know, our commentary on the decline of press freedom in the United States can't be read because no one supports the press in the U.S. right. I mean, it's a real tell. And I think all of that has combined to make it quite easy for key political actors to, to sort of recast the narrative in a really dangerous way. In their telling, the press are not the guardians of, you know, transparency and public dialogue. They're corrupt, you know, self serving intermediaries that are standing in between the people and the government's truth. And like that framing really allows them to portray the dismantling of the press and press freedom as an act of democratic purification when it's simultaneously like setting off alarm bells the world over as this key in indicator of democratic backsliding in the US and so part of this is on us, right? This is like, if we build it, will they come kind of situation. And our capacity to have a healthy performance of the press function, even in a changing news environment where legacy media outlets might not be the place where we get this, we can still support and sustain legally and constitutionally and financially and publicly, the performance of a press function that is healthy and vibrant. But it's on us to do it.
- [68:36]
Dalia Lithwick
It's funny because I think we've missed Groundhog Day. And yet everything we are saying in this conversation about the press we said a few weeks ago in a conversation about voting with Mark Elias.
- [68:48]
Sponsor Announcer
Right?
- [68:48]
Dalia Lithwick
Which is this is an absolute linchpin of a functioning democracy. And yes, it has its flaws, but the great win here is convincing the American people that it is so utterly flawed that you can have a democracy without it. And that's kind of the battle you're trying to lay out here. Sonia, I have to give you a chance to talk about Don Lemon, because most of us who think about press freedom see this as just a game changer. Last week, he pleaded not guilty to federal civil rights charges stemming from his coverage of a protest at a Minnesota church where an ICE official is a pastor. A federal grand jury in Minnesota indicted him and another journalist on charges of conspiracy and interfering with congregants constitutional rights to freely exercise their religion. He says he's not affiliated at all with the protest group. He was there as a journalist to chronicle the event. As you have both noted, this is what we require. You know, people standing with a camera doing journalism. And he was charged of all things under the Face act statute, which prohibits interference or intimidation of, quote, any person by force, threat of force or physical obstruction, exercising or seeking to exercise the right of religious freedom at a place of religious worship. An excellent breakdown of this case from lawfare suggests direct First Amendment challenges to these charges are unlikely to prevail. But there are press freedom issues separate and apart from First Amendment issues.
- [70:24]
Renell Anderson Jones
Issues.
- [70:25]
Dalia Lithwick
What jumps out to you as you're watching this unspool?
- [70:30]
Sonya West
Yeah, what jumps out to me is that the idea of reporters embedding themselves with the subjects of their reporting is a long standing journalistic practice going back very long times, but easily as long as the civil rights movement or others. We've had cases where people do exactly this. They are reporting on and investigating a particular group or a subject and they sort of learn without participating about their action and then cover them when they do that. And this seems to fall quite neatly into that history of that journalistic practice. From the videos that have been released, it seems that he identified himself repeatedly as a member of the press. He asked people questions, he got responses from people who were very critical of what the protesters were doing. He broadcast that information. His viewers got to see how the congregants there felt that this was very upsetting to them as they were engaging in their worship. So he did what we often think of the press as doing. I was just quickly note too, he's not the only reporter. Another reporter named Georgia Fort has also been charged. And so part of this is again, goes back to norms, right? There is just a long time sort of norm that you do not do that, that he was there for a different purpose than arguably the protesters were there, that we would look at that differently. He was a member of the press who was engaging in an active news gathering with the purpose of informing the public. And so it just is a different type of activity and one that we actually want people there doing so that we are, we're able to see what happened. We were able to understand what exactly was going on and make our own decisions about that. You add on to that the fact that they are using what seems to be some legally questionable theories. I also commend the Lawfare article. You know, when I first heard about this, I honestly wasn't even sure what the Face act was because it's not something that usually comes up in media law. And I had to understand how they were cherry picking these other theories and then trying to apply it to an act of journalism. So, yeah, and it's just another example of during Trump 1.0, we definitely had some photojournalists, some others who were arrested, who did face charges that was going on. But we are seeing a huge increase in that kind of action. And now we have, you know, an actual indictment against real journalists, prominent journalists. It's a scary escalation.
- [72:42]
Dalia Lithwick
And journalists of color worth saying, because that's always, always the way this is tested. Ronelle, maybe we can end with some data you just reviewed, which was the press freedom ranking survey for the Reporters Without Borders annual nation ranking. How did the United States fare? And I know you've broken this out in terms of issues you see as doctrinal issues and then the actual operational freedoms within the Press. And I'd love for you to just review what your survey of that led you to believe.
- [73:22]
Renell Anderson Jones
Reporters Without Borders is the most prominent of the press freedom rankings, the most sort of deeply researched and longstanding. They put out numbers every year that take every country in the world and think about the operational and legal press freedom in their space. But we should note there are lots of press freedom organizations the world over that are reaching similar conclusions. And I think that the Reporters Without Borders setup is a really interesting and telling commentary on the kind of trends that we are talking about today. Their annual nation ranking, you know, something like half or so of the questions are deeply doctrinal. They're just like what protections does this country constitutionally afford to people who are, you know, sued by public officials for defamation? Or what kinds of laws call for governmental transparency? Or what legal structures does the country have in place for preserving independent media that's separate from the governing regime and permitted to make its own editorial judgments? And on those fronts, legally, the boots on the ground as we've got been discussing the law that we have in place in the US is healthy and strong and sort of a model for the rest of the world. But you know, the other half of what these organizations are investigating is the kind of actual operational freedom that's experienced in journalism, like the ways that the government does or doesn't weaponize its day to day resources and its disparate power and its alliances with oligarchs to belittle or silence or punish or chill independent journalists voices. And it's really on those measures that the US international press freedom ranking has plummeted. The Reporters Without Borders sent out a map. It's color coded and it has sort of, you know, red, yellow, green and shades of orange across the years. And I have all of the maps hanging on my office wall. My gut just sunk when I hung up the most recent map. And it's really troublesome that this kind of gold between the doctrine and the reality in the US is widening so significantly. And outside observers are viewing it, and I think internal observers are viewing it as well. And there are lots of very smart, capable, thoughtful people, particularly legal scholars, who I think are now galvanizing their efforts around this in really important ways. But that question of how to handle the problem that isn't just whether the law is on the press's side, but whether the structural weaknesses can be taken advantage of even when the law is on the press aside, is the real task in front of us.
- [76:04]
Dalia Lithwick
And I lied when I said that was the Last question. Cause, Sonya, we sometimes the letters from our listeners describe this show as being like, slowly dipped in acid and then taken out and rinsed in acid. So I need to give you. I need to give you the opportunity to sort of plot, play us out with what. I know that most of the time you all are talking to other con law professors and to your students, but I would really love to hear from you what listeners who still believe in the press clause, still believe in a free press. And also, I think, want to get past some of the sniping of, you know, oh, you know, published in that place. You're the devil. Like, you're doing this year of the day. Like, we gotta put that aside. What are you telling people to do to bolster and, in fact to fight for a free press that exists in the way, as you described Madison thought was the appropriate role in a democracy?
- [77:09]
Sonya West
If I have one message I would really love to convey to people, it is this. That when we talk about rights and freedoms, constitutional legal rights and protections for the press, we are not talking about special legal rights for other people, for just journalists who are doing work that are different than, you know, what you do perhaps every day in your office. The Constitution guarantees to all of us that we have a right to live in a country with a strong, independent and free press. This is a right that we share, share collectively, we share with our community. We share as a collection of communities. And it is a right that we have to wake up every day and know, hopefully you're reading the news and listening to the news, but even if you're not, that the press is out there. They're doing this work. They are watching the government. They are checking the powerful. They are going into the places that nobody else is going into and reporting back to us from these places of darkness and shining light on them. They are giving voices to the voiceless. And we are hearing these things and that it makes us better at the job of governing ourselves, but it also makes us understand each other. It makes us understand our neighbors. It brings us cohesion as a people who are trying to engage in this great experiment of living together in a pluralistic and diverse society. And so when we talk about protecting the freedom of the press, that is what we are talking about. We are talking about this right that we all have and that we all share. And when we talk about the. The dangers to it, this is what I fear of us losing this potential. That again, the framers that Madison, that they all. Jefferson, that they all recognized is so vital. If we are going to continue with this great experiment of America.
- [79:04]
Dalia Lithwick
Sonya west is the Otis Brumbe Distinguished professor in First Amendment Law at the University of Georgia Law School. Renell Anderson Jones is a University Distinguished professor and the Lee E. Teitelbaum Chair in Law at the University of Utah. She's an affiliated fellow at Yale Law Information Society Project. Both of them have been visiting research scholars at the Knight Institute. And it is that work at the Knight Institute which has been so essential to constructing this recent book that they edited the Future of Press Freedom, Democracy, Law, and the News in Changing Times. An absolutely essential read for anybody who is thinking about this pillar of democracy in this moment. Sonja and Renell, it is always a pleasure to have you on the show, even when the news about the news
- [79:53]
Sponsor Announcer
a little bit grim.
- [79:54]
Dalia Lithwick
And I thank both of you for joining us today. Thank you.
- [79:57]
Sonya West
Thank you, Dalia.
- [79:58]
Renell Anderson Jones
Thanks for having us.
- [80:01]
Dalia Lithwick
And that is all for this episode. Thank you so much for listening. And thank you so much for your letters and your questions.
- [80:07]
Sponsor Announcer
Keep them coming.
- [80:08]
Dalia Lithwick
We are reachable by email@amicuslate.com you can find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube. Or you can rate us and review us on Apple Podcasts. On today's Amicus plus bonus episode, Mark Joseph Stern and I are talking about all the many flavors of contempt offered by Trump's Department of Justice, the secret memo DHS is using to target and detain lawful refugees in a trap right out of Kafka, and the robo recusal software your favorite stock trading Supreme Court justices are now using to avoid big dollar conflicts of interest. Just not the fishing trip kind. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or you can visit slate.com amicusplus to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. Sarah Burningham is Amicus Senior producer. Our producer is Sophie Summergrad. Hilary Fry is Slate's Editor in chief, Susan Matthews is executive editor, Mia Lobel is executive producer of Slate Podcasts and Ben Richmond is our senior director of Operations. We will be back with another episode of Amicus next week.
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- [82:05]
Sonya West
Lunch was great, but this traffic is awful.
- [82:07]
Renell Anderson Jones
Um, can we stop at a bathroom?
- [82:09]
Dalia Lithwick
Are you alright?
- [82:10]
Renell Anderson Jones
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- [83:01]
Renell Anderson Jones
I'm asking my doctor about EPI and
- [83:03]
Dalia Lithwick
if Creon could help.