Balkinization: The Government, the Press, and Our Shared Diagnosis

The Government, the Press, and Our Shared Diagnosis

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Sonja R. West

It just so happened that my reading of Professor Helen Norton’s fascinating new book, The Government’s Speech and the Constitution, coincided with the arrival in the United States of Covid-19 (aka the “novel coronavirus”). The growing coronavirus crisis, it turned out, was a fitting backdrop for taking in Norton’s thorough and deft exploration of the many effects that flow from the government’s use (and abuse) of its communicative powers. As I read, the number of confirmed coronavirus cases was slowly growing, and the stock market was quickly falling. The public, understandably, was concerned and thus sought information from its societal institutions—namely, the medical and scientific communities, the press, and the government.

In her book, Norton makes the case that we should pay more attention to government speech, because it has an unusual capacity both to add value to our public debate as well as to inflict harm on others. And a national public health crisis is precisely one of those situations that proves her point. During a fast-moving crisis, the government could decide to use its expressive powers for the public’s benefit. The government, after all, has a vast capacity to communicate with the public. It could, therefore, use its expressive channels to do things like share vital information, spur the public to action if needed, and quell panic by dispelling myths.

Unfortunately, during the first weeks of the coronavirus outbreak, the United States government did none of those things (or at least did none of them well). Its messages instead were full of contradictions and managed only to sow public confusion. In mid-February, for example, President Donald Trump told the American public that the virus would likely subside “once the weather warms up”—a theory that government officials from the Centers for Disease Control openly doubted. A week or so later, the CDC cautioned the public to brace for potentially “severe” disruptions to everyday life, while Trump confidentially continued to predict that simply “one day[,] like a miracle, it will disappear.” As a worried country turned to its government for information, the scene it encountered was a president publicly musing that no one really knew if the virus would catch hold in the United States at virtually the same time that its public health officials were warning that the virus’s spread was inevitable and not a question of “if” but “when.”

It was around this time that I reached the part of Norton’s book in which she explores the relationship between government speech, freedom of speech, and press freedom. Much of my research has been focused on the First Amendment and, in particular, on the protections guaranteed by the Press Clause. So I took a special interest in this discussion. Coincidentally, it was also around this time that President Trump’s comments about the coronavirus outbreak took a new turn toward a familiar target—the press.

At a political rally, he accused the news media of being “in hysteria mode” over the virus and called the response to the health crisis a “new hoax.” He tweeted that the “Low Ratings Fake News” channels CNN and MSNBC were trying to make the virus “look as bad as possible” and “panicking markets.” He retweeted claims that CNN was “irresponsibly politicizing” the crisis. In the same breath that he was discussing the virus, he called news organization “fake news” again and again.

By this point in Trump’s presidency, I’m going to assume that these kinds of attacks on the press shocked exactly no one. And Trump, as Norton points out, is hardly the first president who has tried to cast doubt on the media’s credibility. But Norton’s book drives home the point that government speech is a multi-limbed beast that cannot be tamed by traditional frameworks. She demonstrates why we must take care to first fully understand the myriad ways our government’s expressive choices affect us. The Trump administration’s speech during the coronavirus outbreak is, I believe, an invitation for us to do just that regarding issues of press freedom. It is an opportunity for us to consider, with fresh eyes, the press’s unique role in our democracy and, more importantly, the breadth of the harms that can arise when our government uses its communicative powers to interfere with that role.

Frequently, when we discuss constitutional protections for the press, we focus is on the media’s adversarial relationship with the government. Without doubt, scrutinizing the government is one of the press’s most-significant constitutional functions. But if we place too much weight on the press’s work as government critic, we risk undervaluing its other important jobs. When the press is acting in its watchdog role, we tend to view its relationship with the government as inherently antagonistic. It might even seem only natural for a government actor—like the president—to use his powers to push back on a critical member of the press. On some level, of course, we might sense that there can be broader harms if these attacks go too far. But it is still easy to be lulled into thinking that the First Amendment interests at issue are those of that particular journalist or news organization. Take, for example, the White House’s move in 2018 to strip CNN reporter Jim Acosta of his press pass following a contentious exchange with the president. A court concluded that the administration’s action violated due process. But did it also violate the First Amendment’s protections for the press? Many people might have had a strong sense that the government’s action were unfair or problematic. But my guess is that they still saw the core beef as being between Trump and Acosta and that Acosta personally suffered the lion’s share of any constitutional harm that might have occurred.

Yet the primary effects of press freedom go well beyond any individual reporter, and these effects become clearer when we look beyond the news media’s watchdog role. The free press, for example, also serves the constitutional function of informing the citizenry about matters of public concern. While others can also do this work, the press is uniquely situated to the task of keeping the public abreast of newsworthy information. With far more frequency and efficiency than other types of speakers, the press gathers, verifies, interprets, contextualizes, distills, amplifies, and broadly disseminates factual knowledge. This includes factual knowledge about topics like, for example, a public health threat that requires a widespread, communal response in order to limit its spread and lessen its detrimental impact on the country.

When we think about the press in this role, we can see how there are significant harms when, in the midst of a burgeoning pandemic, the acting White House Chief of Staff labels the press’s coverage as “their hoax of the day” and accuses the media of focusing on the matter because “they think this is going to be what brings down the president.” Or when he suggests that the public “turn the television off for 24 hours” instead of following the news coverage. It is likewise concerning when the public health officials who had been actively warning the public about the virus’s severity suddenly go silent.

In these examples, the government was using its expressive power as a tool for discrediting the press, denying it access to information, and limiting its reach. In other words, it was interfering with the press’s constitutionally assigned job of arming the public with the knowledge that it needs to protect itself. It’s also clear that the resulting harm is not suffered by a particular journalist but by society writ large.

The widespread adverse impacts of the government’s speech are thus more apparent with the coronavirus than when Acosta lost his press pass. Because it is easier to see how this isn’t about any one reporter. Rather, it is about my interest in members of the press being able to gather important information so that they can report it to me. But more than that, it’s about my interest in the information being reported to you. And it’s about the interest that we all have in the people around us believing credible news reporting. The press conveys newsworthy information, which then spreads through our community in a manner that is not unlike a (beneficial) virus. We experience the impact of that information, therefore, not just as an individual or even as a collection of individuals, but as a community. This is all to say that we share a collective First Amendment interest in living in a society where the press is free to do its work effectively. Thus when the government interferes with this process, whether by blocking the press from accessing information or by convincing others to disregard reliable reporting, we feel the harms of these choices as a community as well.

Throughout her book, Professor Norton recognizes how the government’s expressive choices can cause all kinds of harms, and she correctly concludes that government actions “that inflict more diffuse harms are less amenable to constraint through constitutional litigation than those that pose ‘concrete and particularized’ harms.” She further notes, accurately, that the United States Supreme Court has not recognized a “more muscular” view of Press Clause protections that distinguish press freedom from general speech rights (despite my protests to the contrary). In her book, however, she sheds light on the complex choices that the government makes when it speaks. She also gives us a framework for how we can think about the causes and effects of these choices. This is an enormous contribution to our understanding of an often mysterious topic, and the discussion she has sparked will undoubtedly continue. As it does, we might want to take a new look at the unique harms that can spread through our society when we fail to protect press freedom.

Sonja R. West is the Otis Brumby Distinguished Professor of First Amendment Law at the University of Georgia School of Law. You can reach her by email at srwest@uga.edu.

Posted 9:30 AM by Guest Blogger [link]