Unique time in First Amendment orthodoxy
Reviewed by Carolyn Schurr Levin
Watching and listening to Donald Trump both at his rallies during the 2016 presidential campaign and then after he became President, Timothy Zick, the John Marshall Professor of Government and Citizenship at William & Mary School of Law, felt that he wanted to chronicle the onslaught of attacks on the First Amendment that he was hearing. Although previous presidents had certainly had terrible relationships with the press, the assaults on journalists as “enemies of the people,” denying reporters access to press briefings because of negative coverage, blocking critics on Twitter, vowing to “take a look at the libel laws,” suggesting that flag burners be jailed, the war on truth, and so much more, felt decidedly different to Zick. He was observing systematic efforts “to undermine the press’ credibility and to turn the public against the media.” And, so Professor Zick set out to chronicle those First Amendment assaults. The result is his recently published, comprehensive and highly readable new book, “The First Amendment in the Trump Era.”
Lest you have tuned out the noise, the book is highly critical of the Trump administration’s approach to the First Amendment. No matter what side of the political spectrum on which you fall, though, this book can truly educate you about this unique time in First Amendment orthodoxy.
Unlike Professor Zick’s three previous books, which primarily targeted an academic audience, this book is pitched to “a wider audience and a broader discourse” about its subject matter. Not only is it intended for those interested in the attacks on freedom of the press in the last several years, but also for those who want to learn more about the history and social benefits of dissent in the United States. Indeed, I found the chapter dedicated to dissent to be the most enlightening. There are “many serious challenges to protecting dissent and maintaining a culture of dissent” now, Professor Zick writes, and “we need to have a plan of attack to deal with [President Trump’s] anti-dissent agenda and to preserve a culture of dissent moving forward.” Democracy thrives “when there is noise and disagreement, not conformity and consensus,” Zick says, arguing for the “active facilitation and encouragement” of the tolerance for dissent. Rather than feeling compelled to “choose sides,” people “must feel free to speak out” without being labeled “disloyal enemies.”
Despite what may feel like an incessant ongoing public conversation about the First Amendment, Professor Zick believes that “a lot of people just don’t know anything” about it. This book aims to solve that problem. It is a detailed and well-sourced chronicle of the First Amendment conflicts that have occurred so far during the Trump presidency, putting them in both historical and social context.
In addition to a broad survey of the president’s relationship with the press, Professor Zick writes eloquently about the President’s “often contemptuous” relationship with individual dissenters. “President Trump has used social media to threaten, troll, and retaliate against reporters, media entities, and dissenters,” he writes. “We ought to heed carefully the First Amendment lessons of this era – both to assess any damage done to our free press and speech institutions and traditions, and perhaps as importantly to reacquaint ourselves with the foundations upon which those things rest.”
Many college media advisers have reported recent and troubling First Amendment assaults on their own campuses, perhaps a trickle-down effect from the wider national landscape. The CMR listserv has, just in the past few months, been filled with anecdotes about newspapers suspiciously missing from newsracks, administrators expressing displeasure about accurate and properly reported stories, and journalism students caving to peer and other pressure in their legitimate newsgathering efforts. Advisers experiencing these or similar issues on their campuses may very well agree with Professor Zick that the press is in trouble.
And yet there is also a lot to be hopeful about. This fall, 297 media advisers and 1322 students attended the CMA convention in Washington, D.C., the highest number since 2015. Previously declining enrollments in journalism programs seem to have experienced a “Trump bump.” According to MarketWatch, applications have jumped at journalism schools across the country, including a 10 percent increase for the 2017-2018 school year at Columbia University’s Graduate School of Journalism, 24 percent more journalism applicants at Northwestern University’s Medill School of Journalism for the 2018-2019 school year, and the highest ever number of first year applicants at the Annenberg School for Communication and Journalism at the University of Southern California. These numbers, reflecting engaged and empowered student journalists, are surely also a part of the legacy of President Donald Trump’s impact on the First Amendment.
Professor Zick is not pessimistic. “I dedicated the book to dissenters for a reason,” he said in a recent phone interview. He believes that “the American people will continue to engage in acts of dissent and play their part in terms of checking authoritarian impulses. We have reached “a critical moment in our nation’s history,” he says, a time when he urges consideration of “how we can best defend and preserve our First Amendment.” He sagely reminds us, “the First Amendment challenges we face as a nation are broader and deeper than any single government official,” just as the challenges college media advisers and students face on campus are larger than any one college administrator.
With the proliferation of fake news, hate speech and a post-truth culture, there is certainly a temptation to throw up our hands in exhaustion. But, there is also ample reason for us to educate ourselves about the First Amendment’s freedom of press and freedom of speech clauses, and the current challenges being posed, if only to sufficiently arm ourselves against them. Professor Zick’s book is a worthwhile and important guide in that endeavor.
Carolyn Schurr Levin is a media and First Amendment attorney affiliated with the New York City Law firm of Miller Korzenik Sommers Rayman LLP. She was the Vice President and General Counsel of Newsday, Vice President and General Counsel of Ziff Davis Media, and Media Law Adviser for the School of Journalism at Stony Brook University. She has taught media law at Baruch College, Stony Brook University, Long Island University, and Pace University. From 2010-2019, she was the faculty adviser for the Pioneer, the student newspaper at Long Island University, during which time the Pioneer won 28 awards.