The First Amendment: Without a Friend in the 2016 Election Cycle?

by Jackson Walker
Contact

Jackson Walker

With Election Day less than two weeks away, it’s an interesting time for the First Amendment. Unlike the Second Amendment where party lines appear strong, the 2016 presidential candidates’ stance on First Amendment issues and the press is complex, highly individualized, and sometimes at odds with party association.

Republican Nominee Donald Trump’s disdain for the media is no secret. Trump has referred to the press as “dishonest” and “absolute scum.”1  He has banned news outlets such as The Washington Post, POLITICO, The Huffington Post, Buzzfeed, and The Daily Beast from attending his events. Trump has proclaimed that, if elected President, he will open up libel laws “[s]o when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”2  For the media and those of us who defend them, these are truly chilling words.  They also turned out to be prescient, as Trump recently threatened to file a lawsuit against The New York Times for its story featuring two women who said Trump made unwanted advances.  Finally, Trump has infamously refused to provide his tax returns to the press and public—breaking a more than 40-year tradition by GOP nominees.

            Across the aisle, Democratic Nominee Hillary Clinton’s relationship with the media is also strained.  Clinton was widely criticized earlier this year for going many months without holding a press conference—a stretch which prompted several media outlets to comment on her “press conference phobia.”3 In addition, Clinton’s use of a private email server to conduct government business as Secretary of State has been characterized as exploiting a loophole in the Freedom of Information Act (“FOIA”) because it “neither authorizes nor requires agencies to search for Federal records in personal email accounts maintained on private servers.”4  Finally, during Clinton’s tenure, the State Department was reported to “regularly fail[] to respond to FOIA requests in a timely or complete manner” and often provide inaccurate responses.5

            Perhaps no discussion on politics and free speech would be complete without mentioning the now-famous Citizens United v. FEC.  There the Court considered several issues, including whether the restrictions on corporate political contributions under 2 U.S.C. §441b (a federal statute containing criminal sanctions) applied to the documentary Hillary, a film created by a non-profit corporation called Citizens United.  As one might guess, Hillary was critical of then-Senator Clinton who was running for the Democratic Party’s presidential nomination against Barack Obama. Citizens United sought to televise the documentary on video-demand and to purchase advertisements on both cable and broadcast television 30 days prior to the primary election. The Court held that Section 441b’s restrictions against doing so were invalid.

While campaigning in the current election cycle, Clinton has called for a constitutional amendment that would overturn Citizens United.  She has called it “one of the worst Supreme Court decisions in our country’s history” and stated that “[t]he idea … that money is speech turns our Constitution upside down … the Supreme Court has given the wealthiest Americans even greater power to affect what happens in our democracy.”6  The irony that such an amendment would effectively censor political films critical of Clinton (and other candidates) close to election-time appears to be mostly lost on the public.

            While many Republicans hailed Citizens United as a decision that restored free speech rights improperly infringed, Republican presidential nominee Trump’s record on the issue is a bit more complex.  Last year during the Republican primary, Trump criticized Citizens United as a “total phony deal” that allowed super-PACs to raise vast sums of money for a candidate.  Yet in September 2016, Trump hired David Bossie, the recent President of Citizens United, as his deputy campaign manager.  While the hiring of Bossie may have had more to do with his long history of investigating the Clintons, there is still some tension with Trump’s prior disavowal of the super-PACs unleashed by the very same organization.

            Given each candidates’ strained relationship with the press and poor history with open access to records, the 2016 election-cycle has left us wondering whether the First Amendment has been left without a friend in the highest of places.

_____________________________________________

1  CNN, Trump’s jabs at the press: A compilation, at http://www.cnn.com/videos/cnnmoney/2016/05/31/donald-trump-media-attacks-cnnmoney.cnn (last visited Aug. 15, 2016).

2 Hadas Gold, Politico, Donald Trump: We’re going to ‘open up’ libel laws, Feb. 26, 2016, at http://www.politico.com/blogs/on-media/2016/02/donald-trump-libel-laws-219866 (last visited Aug. 15, 2016).

3See e.g., Jack Shafer, Politico, Hillary Clinton’s Press Conference Phobia, July 10, 2016, at http://www.politico.com/magazine/story/2016/07/hillary-clintons-press-conference-phobia-214026 (last visited Aug. 15, 2016).

4 Catherine Herridge and Pamela K. Browne, Fox News, Clinton’s private email account exploits FOIA loophole, report says, Jan. 7, 2016, at http://www.foxnews.com/politics/2016/01/07/clintons-private-email-account-exploits-foia-loophole-report-says.html (last visited Aug. 21, 2016).

5 Taylor Wofford, Newsweek, State Department Flubbed FOIA Request of Hillary Clinton’s Private Email Server, Jan. 1, 2016, at http://www.newsweek.com/hillary-clinton-private-email-server-412839 (last visited Aug. 21, 2016).

6 Hillary Clinton, Speech at the University of Wisconsin–Madison (March 29, 2016) (transcript available at https://www.hillaryclinton.com/post/remarks-supreme-court-and-whats-stake-2016-election/).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jackson Walker | Attorney Advertising

Written by:

Jackson Walker
Contact
more
less

Jackson Walker on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.