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.