United States

IAPA Midyear Meeting 2017
Antigua Guatemala, Guatemala
March 31 - April 3

The recent election of President Donald J. Trump has reshaped the environment for news media in the contry. As a candidate, Mr. Trump, among other things, threatened to sue The New York Times in response to an article it published. And, following the election, Mr. Trump publicly criticized the news site BuzzFeed, calling it a "failing pile of garbage." As president, Mr. Trump refused to answer a question posed by CNN's Jim Acosta during a press conference, labeling the network "very fake news," and has called for the investigation of "leaks" of information to the press from the White House and other parts of the federal government.

Coming from the leader of the United States, these statements are cause for concern about the future of newsgathering and press freedom. The "fourth estate" is one of the hallmarks of U.S. democracy; a free press is intended to serve as a check on governmental power and to guard against misconduct by public officials. While it is common for tension to exist between the press and the White House, the Trump Administration's rhetoric is unprecedented and threatens to undermine the news media's ability to keep the public informed about the activities of the new administration and its plans for the future of the country. At the same time, a lack of transparency has impeded news coverage of the Trump Administration and restricted the ability of journalists to report on policies that directly affect citizens.

In recent months, news media have been forced to grapple with the emergence of "fake news" and a president who has co-opted that term to discredit and attack legitimate, truthful reporting that he deems unfavorable, saw credentialed reporters from established news organizations excluded from a press "gaggle"—or briefing—with the White House press secretary, witnessed the confirmation of a new attorney general who has been a vocal critic of "shield" protections for journalists and who, within days of his confirmation, quickly approved the issuance of a subpoena to a journalist, and saw new evidence of a troubling trend in how civil lawsuits against the press are financed and pursued.

The election of Donald J. Trump as president has created an atmosphere of anxiety and uncertainty regarding the future of press freedom. Prior to his inauguration, Mr. Trump threatened journalists with lawsuits, promised to "open up" U.S. "libel laws" that protect media organizations from liability when they report on public figures, mocked a disabled New York Times reporter, and insulted specific media outlets for coverage he viewed as critical of him. He denied press credentials for campaign events to The Washington Post, Politico, The Huffington Post, The Daily Beast, The Des Moines Register, and Univision, and had Univision reporter Jorge Ramos forcibly removed from a press conference during the campaign. Mr. Trump has also resorted to public name calling, referring to reporters as "dishonest" and "scum."

Mr. Trump's verbal attacks on the news media have not decreased since he took office. He has described several prominent news organizations as "fake news"—a term that had originally been used to define deliberately false, invented stories posted on social media sites for the purpose of misleading potential voters during the presidential election. Co-opting the phrase, Mr. Trump has called NBC, ABC, CBS, CNN, and The New York Times "FAKE NEWS media[,]" as well as "the enemy of the American people" on Twitter. President Trump's chief strategist, Stephen Bannon, has echoed his boss's sentiments by calling the news media the "opposition party" and stating that it "should be embarrassed and humiliated and keep its mouth shut . . . ." The criticism seems calculated to undermine the credibility of news media organizations that are reporting on the Trump Administration, making it more difficult to hold the administration accountable.

Soon after President Trump came into office, publicly available data on government websites began to disappear. Much of the content of the website that the Obama Administration had launched to increase transparency—open.whitehouse.gov—was removed without any notice to the public. That website, which once provided a list of White House visitors, revealed trends in government spending, and touted a commitment to transparency now simply tells visitors to "check back soon for new data." The removal of content from open.whitehouse.gov took place after February 8, 2017, but the exact date material was deleted is not clear. The Obama Administration launched the website in 2009 to offer the public more information about the functioning of government and intended it to set an example for future presidencies. The National Archives and Records Administration (NARA) has archived the Obama Administration's data sets in accordance with the law on open.obamawhitehouse.archives.gov, but the current website for the Trump Administration does not provide links to that data.

The open.whitehouse.gov website is not the only one affected. Circulars on technology and privacy policies have been removed from the current Office of Management and Budget website. The link now thanks visitors for their interest in the subject and tells them to "stay tuned." On February 3, 2017, the U.S. Department of Agriculture (USDA) also deleted information from its website, including inspection reports regarding treatment of animals at laboratories, zoos, and dog breeding locations. The agency's Animal and Plant Health Inspection Service (APHIS) noted that the removal was due to privacy concerns and a lawsuit regarding information on the APHIS website, but also said that "[a]djustments may be made regarding information appropriate for release and posting." The removed documents, including actions taken against violators of the Horse Protection Act and the Animal Welfare Act, are now only available through Freedom of Information Act requests. Journalists have previously used the records to report on, among other things, animal welfare violations at colleges, and members of the public could access information about USDA-approved dog breeders. There is no indication as to what motivated removal of this information and whether it is permanent.

President Trump has also broken with tradition when it comes to holding press conferences. As president-elect, he held only one press conference. While originally scheduled for December 15, that first post-election press conference was cancelled, and Mr. Trump ultimately waited 167 days—until January 11—before holding a press conference as the president-elect. Even as early as 1976, presidents-elect often held a news conference within three days of the election. Since his inauguration, President Trump has held only one solo press conference, and he waited until February 16 to do so. During that press conference, he railed against the news media for purportedly being "so dishonest," "speaking . . . for the special interests and for those profiting off a very, very obviously broken system," and "trying to attack [his] administration." President Trump went on to criticize reporters for, in his view, reporting on chaos within his administration when, in his words, it was "running like a fine-tuned machine."

Other members of the Trump Administration have also sought to avoid questioning by the news media. Secretary of State Rex Tillerson allowed only one news organization to accompany him on a recent trip to Asia—the conservative news site Independent Journal Review (IJR), which is partially owned by one of Vice President Mike Pence's advisers. The State Department had earlier informed the news media that Secretary Tillerson would not be traveling with a press pool. The State Department Correspondents Association issued a statement criticizing his decision to bring one lone reporter: "After saying it was unable to accommodate press on the Secretary's plane to Asia due to space and budget constraints, the State Department offered a unilateral seat to one reporter." Former Secretaries of State, ranging from James Baker to Condoleezza Rice, have often traveled with ten or more journalists. In response to complaints, Secretary Tillerson stated: "I'm not a big media press access person. I personally don't need it... We're not hiding from any coverage of what we're doing... They have people there... The only thing that's missing is the chance to talk more in the air." As a result of the lack of access, U.S. news media was unable to confirm or deny reports that Secretary Tillerson "shorten[ed] diplomatic consultations and public events in Seoul," South Korea due to "fatigue." Secretary Tillerson, himself, later disputed these claims.

The Trump Administration also recently blocked credentialed reporters from The New York Times, BuzzFeed, CNN, The Los Angeles Times, Politico, BBC, The Guardian, The Daily Mail, and The Huffington Post from attending a media briefing with White House press secretary Sean Spicer on February 24, 2017. The New York Times made several attempts to attend the briefing, first sending an email to the White House press office—which went unanswered—and then appearing at Mr. Spicer's office, only to be refused entry. At the "gaggle," Mr. Spicer said that he wanted to include news outlets that were not typically invited to such briefings, and reportedly claimed that he could not permit all news organizations to attend due to space, a claim refuted by one reporter who was present. Conservative media outlets who have given favorable coverage to the Trump Administration, like Breitbart News, whose former executive chairman is Stephen Bannon, President Trump's chief strategist, were in attendance. The White House deputy press secretary noted that the designated "pool" reporter—a single reporter who agrees to report out from the briefing for those not present—participated in the "gaggle."

In recent weeks, the President and White House staff have been particularly critical of media reporting based on anonymous sources and have repeatedly called for law enforcement to investigate "leaks" of information to the news media from within the government. At a speech at the Conservative Political Action Conference (CPAC) on February 24, 2017, President Trump told the audience that journalists "have no sources" and "just make them up when there are none." He added that the news media "shouldn't be allowed to use sources unless they use somebody's name." Officials from the Trump Administration have criticized news stories that rely on anonymous sources, including one by The New York Times about contacts between members of the Trump campaign and Russia. On NBC's Meet the Press, White House Chief of Staff Reince Priebus said the story was "grossly overstated and inaccurate and totally wrong." He called the report "fake news" and stated that The New York Times did not have "a single source on the record" affirming "that [the Trump] campaign had constant contacts" with Russian intelligence officials.

After the FBI reportedly refused to provide public support for Mr. Priebus' claim that ties between the Trump campaign and Russia were "fake news," President Trump tweeted that the "FBI is totally unable to stop the national security 'leakers.'" He then tweeted: "[F]ind the leakers within the FBI itself. Classified information is being given to media that could have a devastating effect on U.S. FIND NOW." President Trump has also paradoxically called such leaks "real" while simultaneously labeling the news stories that report them "fake": "The news is fake because so much of the news is fake," he said at a press conference at the White House.

In an effort to both expose and chill leaks coming from the White House, Mr. Spicer conducted random checks of White House staffers' personal and work cell phones with White House attorneys present. Mr. Spicer also told staffers that the use of encrypted messaging apps like Confide or Signal violate the Presidential Records Act, which requires the preservation of all official presidential and vice presidential records. He had previously blamed aides for leaks that led to what he viewed as unfavorable reporting about the Trump Administration.

On February 8, 2017, the U.S. Senate confirmed former Senator Jeff Sessions as Attorney General, head of the Department of Justice. Sessions is widely viewed as someone willing to pursue leak investigations and prosecutions. During his confirmation hearing, Sessions stated that he had "not studied" revised Justice Department media subpoena guidelines that, among other things, only allow federal prosecutors to seek to compel testimony of reporters and production of their newsgathering material when it is absolutely necessary. In response to whether he would commit to following these Justice Department standards, Sessions stated that when he was a United States Attorney for the Southern District of Alabama, "everybody knew that you could not subpoena a witness or push them to be interviewed if they're a member of the media without approval at high levels of the Department of Justice. That was in the 1980s. And so, I do believe the Department of Justice does have sensitivity to this issue." During his testimony, Sessions identified one specific situation in which he would be in favor of a subpoena to a member of the news media: where "unlawful intelligence is obtained."

On February 16, 2017, during Attorney General Sessions' first week in office, he authorized the issuance of a subpoena to John Sepulvado, a former reporter with Oregon Public Broadcasting, seeking to compel him to testify about interviews he conducted with sources for a news story. The Reporters Committee filed a brief in support of Mr. Sepulvado's motion to quash the subpoena. The subpoena was subsequently quashed. Thus, while Sessions presumably found that the reporter's testimony was essential to the prosecution, a federal judge decided it was not.

As a senator, Sessions was a vocal critic of the Free Flow of Information Act, proposed "shield" legislation that would have created a federal reporter's privilege, and he endorsed surveillance policies that compromise confidential reporter-source relationships. For instance, he opposed the USA Freedom Act that terminated the National Security Agency's bulk collection of Americans' phone records. As a member of the Senate Judiciary Committee, he voiced his disapproval of the proposed federal shield bill, stating that it would "protect[] those who use the media to illegally expose America's national security secrets . . . by creating a federal court privilege that can prevent the enforcement of government subpoenas aimed at finding the leakers of confidential information." He said that the reporter's privilege was "not just a protection for journalists, but a shield for those who break federal law and put Americans' lives at risk." Then-Senator Sessions did not address the fact that the bill being considered by the Senate contained exceptions for national security matters.

While senator, Sessions also questioned whether journalists need a shield law because he did not "think the problem is . . . as great as people believe, and the solution that [was] proposed [, a federal shield law,] will cause more problems." Then-Senator Sessions explained his view: "Really, the matter is about the leaker. This presumptively is a crime. The information that the leaker has provided to a reporter is a crime that's supposed to be enforced by the Department of Justice." In 2013, when the Judiciary Committee voted to send the bill to the Senate floor, new exceptions and exemptions were inserted into the bill. Yet, Sessions still refused to support the bill: "We need to make it clear, so that a reporter says 'no, that information is clearly not the type of information I can take and publish and protect you, who are leaking in a criminal act secured information.... That's the way you create some kind of clarity in our legislation. We're not attempting to prosecute a journalist. We're attempting to tell the journalist precisely what.... he can tell a potential informant, leaker, spy, traitor.... a cold-blooded traitor he could be dealing with," Sessions said.

A high-profile privacy lawsuit by Terry Bollea, the former professional wrestler known as Hulk Hogan, against the online news site Gawker has spurred concern that a new breed of billionaire-backed civil lawsuits will be used to intimidate and silence members of the news media. The Gawker lawsuit was covertly financed by Peter Thiel, the billionaire co-founder of PayPal, in order to harm Gawker, whose ValleyWag website had reported accurately in 2007 that Mr. Thiel was gay. Mr. Thiel's goal in funding Mr. Bollea's lawsuit, which was based on Gawker's publication of a portion of a sex tape featuring Mr. Bollea, became evident when Mr. Bollea's attorney suddenly dropped one of the claims in the lawsuit that would have permitted Gawker's insurance company to pay for its defense. The lawsuit ultimately caused Gawker to file for bankruptcy in August 2016 following a four-year legal battle that resulted in a multi-million dollar jury verdict in favor of Mr. Bollea. In its Chapter 11 bankruptcy petition, Gawker listed more than $100 million in liabilities, including a $31 million payment to Mr. Bollea, as well as costs from other pending lawsuits. In an interview with The New York Times, Mr. Thiel said that financing the Gawker lawsuit was "one of the greater philanthropic things that I've done" and admitted that it was not the only case that he had funded.

Wealthy or well-connected individuals with access to substantial financial funding and the motivation to destroy a news organization could force other news outlets out of existence by following this same model.

In addition to Mr. Bollea's case, several other lawsuits filed against Gawker were brought by the same attorney, Charles J. Harder, and funded by Mr. Thiel. During the Bollea/Gawker litigation, Mr. Harder turned down large settlement offers and filed hundreds of motions requiring the use of substantial—and expensive—legal resources, which prompted speculation that the litigation was brought to harm Gawker more than to win legal restitution. Another one of Mr. Harder's cases against Gawker was brought on behalf of a plaintiff, Shiva Ayyadurai, who claimed to have invented email; Gawker ridiculed that claim. A technology industry blog, Techdirt, had also reported on Mr. Ayyadurai's claim, supporting its article with evidence that email had existed before he created his software. The online news platform is currently fighting a lawsuit brought by Mr. Ayyadurai, and doing so with fewer financial resources than Gawker had. Techdirt has stated that it intends to fully defend itself against the litigation that threatens its very existence. It is unknown whether Mr. Thiel is also the financier behind the Techdirt lawsuit.

Mr. Harder is also currently pursuing a $150 million defamation suit against the Daily Mail and recently settled a case against an independent blogger which were brought on behalf of First Lady Melania Trump in connection with an article that referred to her as an escort. The blogger, who republished information from the Daily Mail story, had previously issued a retraction and removed the article from his website. While Mr. Harder does not currently represent the president, he has said that he agrees with President Trump that the actual malice standard established in New York Times v. Sullivan should be eliminated.

As a billionaire sponsor of litigation against news organizations, Mr. Thiel is not alone. Frank VanderSloot, a billionaire Republican donor, has vowed to help fund defamation lawsuits against the media company Mother Jones, even pledging $1 million dollars for the effort. Mother Jones won a defamation lawsuit brought by VanderSloot in 2015. Mr. Thiel is also a vocal supporter of President Trump, having played a central role in his administration's transition. Mr. Thiel has been described as an outside-the-White House version of Stephen Bannon—an influential member of President Trump's inner circle who has advocated for the placement of his colleagues into positions within the federal government.