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November 18, 2017

The Fragility of the Free American Press

Abstract

President Donald Trump has faced criticism for attacking the press and for abandoning longstanding traditions of accommodating and respecting it. This Essay argues that the national discussion spurred by Trump’s treatment of the press has fallen short of capturing the true seriousness of the situation. Trump’s assault on the custom of press accommodation follows a generation-long collapse of other major press protections. In order to fully understand the critical juncture at which American press freedom now stands, we must expand the discussion beyond talk of a rogue president’s aberrant attacks on the press and consider the increasingly fragile edifice on which the American free press sits. This is because the kind of press we value and need in the United States—one that is free, independent, and democracy-enhancing—does not just occur naturally. Nor is it protected by a single, robust constitutional right. Rather, it is supported by a number of legal and nonlegal pillars, such as the institutional media’s relative financial strength, the goodwill of the public, a mutually dependent relationship with government officials, and the backing of sympathetic judges. Each of these supports has weakened substantially in recent years, leaving the one remaining pillar of tradition and custom to bear more of the weight. Contrary to widespread belief, our concern should not be that Trump might be taking the first step toward crippling the power of the free press, but rather that he might be taking the final step in a process that has long been underway.

Authors

RonNell Andersen Jones, Lee E. Teitelbaum Endowed Chair & Professor of Law, S.J. Quinney College of Law, University of Utah; Sonja R. West, Otis Brumby Distinguished Professor of First Amendment Law, University of Georgia School of Law. The authors are grateful for helpful comments received at the Yale Freedom of Expression Scholars Conference.

Copyright 2017 by RonNell Andersen Jones and Sonja R. West.

Cite as: RonNell Andersen Jones and Sonja R. West, The Fragility of the Free American Press, 112 Nw. U. L. Rev. Online 47 (2017), http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1251&context=nulr_online&preview_mode=1&z=1511042959.