The following blog post can also be read at Roger Williams University’s First Amendment Blog.
By Edward Fitzpatrick
The 45 words in the First Amendment guarantee five freedoms: freedom of religion, freedom of speech, freedom of the press, freedom to assemble and freedom to petition the government. But those constitutional guarantees are paper thin if not defended and championed by each generation.
In his book “Freedom for the Thought We Hate,” Pulitzer Prize winner Anthony Lewis noted that in 1798 (just seven years after the First Amendment was added to the Constitution), Congress passed a law punishing disrespectful comments about the president, and editors went to the hoosegow for mocking President John Adams. And a century later, men received 20 years in prison for criticizing a policy decision by President Woodrow Wilson.
On his first day in office in 2008, President Obama issued a memo saying, “My administration is committed to creating an unprecedented level of openness in government.” He even signed a memo quoting the late U.S. Supreme Court Justice Louis D. Brandeis: “Sunlight is said to be the best of disinfectants.” But despite those sunshine promises, the Obama administration ended up prosecuting more leakers under the Espionage Act than all other administrations combined while threatening to put James Risen — a New York Times investigative reporter, Brown University graduate and former Providence Journal writer — behind bars for refusing to identify a source.
Now, President-elect Donald J. Trump is preparing to take office — not amid calls for unprecedented openness — but amid unprecedented vilification of the press, calls for making it easier to sue news organizations for libel, the denial of press credentials to the Washington Post and others, harsh criticism of protesters, vows to temporarily ban Muslim immigration and, most recently, the suggestion that flag burners should lose their citizenship or spend a year in jail.
Let’s remember that the five freedoms found in the First Amendment apply to members of all political parties, to all faiths — to all Americans. So do all Americans have a stake in defending those 45 words as the 45th president of the United States takes office? Absolutely!
Corey Lewandowski, Donald J. Trump’s first campaign manager, said the executive editor of The New York Times “should be in jail” because the newspaper published parts of the president-elect’s tax returns during the race.
Lewandowski, who has been floated for a possible role in the White House, has in the past said he hoped Trump would sue the Times “into oblivion” for publishing several pages of his 1995 tax returns, which reported a loss of nearly $1 billion — enough that he could have avoided paying federal income taxes for 18 years as a result. But his comments at a Dec. 1 conference at Harvard University “now carry the weight of coming from an informal adviser and possible future employee of the next president,” Politico reported.
And the prospect of jailing journalists for printing truthful information about the most high-profile public official in the land raises obvious First Amendment concerns.
Before the Times reported on the tax returns, a lawyer for Trump threatened legal action, citing a federal law that makes it a crime to publish federal tax return information. But the Times only published parts of state tax returns. And as the Times’ Adam Liptak reported, “the First Amendment poses a very high barrier to any such litigation.”
In its 2001 Bartnicki v. Vopper decision, the U.S. Supreme Court ruled that the First Amendment protects the disclosure of illegally intercepted communications by parties who did not participate in the illegal interception (That case involved a secret recording of a cellphone conversation). “In these cases, privacy concerns give way when balanced against the interest in publishing matters of public importance,” Justice John Paul Stevens wrote for the majority.
Justin Silverman, executive director of the New England First Amendment Coalition, said Lewandowski’s comments aren’t surprising: “They reflect the same animosity toward the press that marked President-Elect Trump’s campaign. The tax returns published by The New York Times are of great public interest. To claim that an editor should be imprisoned for publishing them is an affront to the First Amendment and the protections it provides to all Americans.”
Edward Fitzpatrick is the director of media and public relations at Roger Williams University and a member of the New England First Amendment Coalition’s Board of Directors.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include The Providence Journal Charitable Legacy Fund, The Robertson Foundation, The Boston Globe and Boston University.