Three weeks into Trump’s second presidency, press freedom is in danger for newsrooms nationwide.
San Francisco radio station KCBS is facing a Federal Communications Commission (FCC) investigation after broadcasting information about an Immigration and Customs Enforcement operation; Associated Press journalists are barred from White House events after refusing to follow Trump’s executive order to rename the Gulf of Mexico the Gulf of America; and major media houses like ABC and CBS faced Trump lawsuits even before he took office.
“What power is the FCC asserting? It appears to be a claim that reporting the news is not in the public interest if the government doesn’t like what news is being reported,” said David Loy, legal director of the First Amendment Coalition at a Friday, February 14 Ethnic Media Services briefing about recent press freedom threats.
The FCC primarily regulates broadcast media like radio and television. Print and digital content is beyond its jurisdiction.
The organization’s authority depends on a “public interest” standard — rooted in the Radio Act of 1927 and the Communications Act of 1934, when airwaves were scarce — requiring broadcasters to operate in a way that serves the public interest.
In laws, lawsuits and regulations since then, however Congress, courts and the FCC itself have been unclear on the meaning and scope of “public interest.”
‘The process is the punishment’
In a case toeing this gray area of public interest last January, Trump’s new FCC chair Brendan Carr ordered an investigation of NPR and PBS for “broadcasting underwriting announcements that cross the line into prohibited commercial advertisements.”
“It’s not the government’s business to dictate what the press reports, or how … and who is doing what on the government dime is, by definition, public business and newsworthy,” said Loy. “There’s a reason that the press is the only private institution expressly named in the Constitution, where the First Amendment guarantees its freedom.”
“The process is the punishment when it comes to freedom of speech,” he continued. “I think the most pernicious danger is self-censorship, and this is not just a red state or federal issue. Local officials have been threatening reporters for years,” with many recent instances in California alone.
In May 2019, for example, San Francisco police obtained a warrant to raid the home of a freelance journalist — taking a sledgehammer to his gate and seizing his computers, phones and other devices — after he refused to name a source related to the death of San Francisco public defender Jeff Adachi that February.
In April 2022, a Los Angeles County sheriff gave a press conference calling for the investigation of an LA Times journalist who reported on a leaked video of a deputy kneeling on the head of a handcuffed inmate for several minutes.
Last December, a San Joaquin County sheriff announced that journalists who legally obtained county Superior Court documents could face criminal prosecution for having “conspired to break the law.”
“This erosion of norms and legal safeguards for journalists is part of a global trend,” said Joel Simon, founding director of the Journalism Protection Initiative at the Craig Newmark Graduate School of Journalism. “There’s not a lot of examples where press freedom has declined and then rebounded … Once your rights deteriorate, it’s very difficult to reclaim them.”
Press freedom violations in the U.S. are even older than the country itself, spanning landmark cases including a 1734 libel suit against a publisher by New York’s colonial governor; the 1798 Sedition Act criminalizing criticism of the government, repealed two years later; and President Nixon’s far more recent Watergate breach in 1972.
‘Defending our ability to do our work’
“What makes these issues potentially more damaging now is that the institutional power of the media is greatly diminished,” said Simon. “During the first Trump administration, the battle was over who controls the narrative. That’s not where we are now. Now, we have to focus on defending our ability to do our work. If we don’t, we’re going to see those rights erode.”
“Outside the U.S., a lot of legal harassment targeting media is not related to the production of content, but other things like tax issues, fraud allegations and workplace practices,” he explained, recommending that U.S. journalists brace themselves for the same.
Legal resources for journalists include pro bono aid through Lawyers for Reporters, ProJourn and Reporters Committee for Freedom of the Press (RCFP), and legal hotlines through RCFP and the First Amendment Coalition.
“Self-censorship is not good because people will not get the news. It’s as simple as that,” said Zach Press, senior staff attorney at Lawyers for Reporters at the Cyrus R. Vance Center for International Justice. “The question we should ask ourselves is: What measures do we put in place to have the confidence to do that reporting?”
He added that with Trump’s attacks on this confidence, Lawyers for Reporters has seen an increase in “strategic lawsuits against public participation,” or SLAPPs; these are lawsuits brought by people and entities to dissuade negative publicity by forcing the critics accused to spend extensive time and money on defense.
The good news?
In recent years, many states have adopted anti-SLAPP laws, almost all involving fee shifting — meaning that if, for example, a court dismisses a case or rules against the suing plaintiff, that plaintiff must pay the defendant’s lawyer fees and possibly even more in damages.
Adopting states include Virginia in 2017; Colorado, Virginia and Texas in 2019; New York in 2020; Washington in 2021; Kentucky and Arizona in 2022; Pennsylvania and Minnesota in 2024; and Ohio last January.
“It’s a very strong deterrent,” said Press of the laws. “If the plaintiff knows they’ll be on the hook for a claim they just wanted to raise to shame a journalist, maybe they’ll think twice about it.”
Against SLAPP and other threats, he encouraged journalists to make their work as factually, digitally and legally bulletproof as possible through extensive editorial fact-checking; media liability insurance; encrypted messaging apps like Signal and Telegram; and — especially for nonprofits, which comprise many local media — updated tax and employment filings.
Through actions like these, “press freedom begins at home,” added Loy. “I can’t guarantee that the FCC or any other arm of government will not attempt to abuse its power, but autocracy depends on acquiescence.”
“Ignore your rights and they will go away. The best way to stand up to a bully is to fight a bully,” he continued. “Yes, there are risks … but the press should not allow those risks to prevent it from fulfilling its function: to report the news.”
