Free Press In Crisis

Note: I had the good fortune of being asked to participate in "A Constitution Challenged," a September 18, 2025 Constitution Day panel at the University of Wisconsin Oshkosh. My role was to talk about current challenges to the free press. Below is a summary of my remarks. --Tony Palmeri 

In 1787 the Founders gave us a First Amendment that made it against the law for the Congress to abridge the freedom of the press. Yet just a decade later, in 1798, the Congress abridged the freedom of the press. The Sedition Act made it a crime for American citizens to "print, utter, or publish...any false, scandalous, and malicious writing" about the government.

A number of dissenters were prosecuted under the Sedition Act, but it did expire in 1800. Still, for much of American history the press practiced self-censorship. That was because the First Amendment was interpreted as only limiting what the Congress in Washington could do; states and local communities thus felt empowered to abridge the press as much as they wanted. Even after the Supreme Court ruled, in the 1925 Gitlow v. New York decision, that the First Amendment did apply to the states, political leaders' threats of libel and defamation lawsuits continued to muzzle the press significantly. 

That all changed in 1964 with the landmark case of New York Times v.Sullivan. Justice Brennan wrote that "we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Further, "an unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.” 

NYT v. Sullivan created a high bar for public officials to be able to prevail in defamation lawsuits against the press. The official would have to prove "Actual Malice," meaning that the accused press knew what they published was false, or acted with reckless disregard for the truth. The hard hitting, sometimes blistering journalism and punditry we came to know (and take for granted) from the 1960s until today was only possible because of NYT v. Sullivan. 

Justice William Brennan, widely recognized as one of the great free speech champions of the United States Supreme Court, wrote the majority opinion in NYT v. Sullivan

Today the free press is in crisis. The crisis did not start with the Trump Administration, but President Trump is challenging press freedoms in a way we have not seen in many years. I will briefly cover six areas of crisis: 

1. President Trump’s Defamation Lawsuits
2. Attacks on Press Independence
3. The New Federal Communications Commission
4. Dismantling of Support For National Public Radio and Public Broadcasting
5. Attacks on Public Access to Information
6. Attacks on the Student Press

 Trump Defamation Lawsuits

• In 2023 Trump sued CNN for $475 million, claiming that the network defamed him when they referred to his election results denialism as a “Big Lie” technique. A federal judge threw out the lawsuit.
• In July President Trump filed a $10 billion defamation lawsuit against the Wall Street Journal, claiming that the paper's story about the birthday card that Trump sent Jeffrey Epstein is false, malicious, defamatory fake news. Lawyers for the WSJ asked a judge to throw out the suit, arguing that "This meritless lawsuit threatens to chill the speech of those who dare to publish content that the President does not like." 
• President Trump filed a $20 Billion lawsuit against Paramount over the manner in which an interview with Kamala Harris was edited by “60 Minutes." Even though there was nothing at all unusual about the way the interview was edited, Paramount agreed to pay Trump $16 million to settle. Shari Redstone was the Chair of Paramount, and the rumor is she wanted to settle the suit so that the federal government would approve an $8 billion dollar merger between Paramount and Skydance. Paramount also announced that the Late Show With Stephen Colbert would be canceled at the end of this year. In July the Federal Communication Communication Commission approved the merger.
• Trump sued ABC News for defamation over comments made on-air by George Stephanopolous. Instead of saying that Mr. Trump had been found liable for the "sexual abuse and defamation" of E. Jean Carroll, Stephanopolous said Trump had been found liable for rape. ABC agreed to donate $15million for the Trump Library to make the defamation lawsuit go away. 
• Trump sued the Des Moines register for publishing an election poll that predicted Kamala Harris would win Iowa.
• Recently Trump sued the New York Times for $15 billion over their 2024 coverage of the presidential campaign. 

Attacks on Press Independence

• The administration banned the Associated Press from the White House press pool for not using Trump’s "Gulf of America" rebranding of the Gulf of Mexico. A federal judge ordered the White House to restore the newsroom’s access in April on the grounds that the ban violated the First Amendment. However, that decision was temporarily delayed by the D.C. Circuit with an appeal currently pending.
• Coverage of the White House. The White House Correspondents Association for 100 years managed the selection of reporters to cover the White House. In February the WHCA ceded control of that responsibility to the Trump Administration. That's why we are now treated to absurdities like a pro-Trump sycophantic "reporter" asking President Zelensky why he is not wearing a suit: 

The New Federal Communications Commission

• President Trump appointed Brendan Carr, the lead author of a chapter in Project 2025, to lead the Federal Communication Commission.
• Carr has  launched a number of investigations into media sources that president does not like, and Paramount as well as Verizon and T-Mobile ended DEI programs.

 Dismantling of Public Support For National Public Radio and Public Broadcasting

• These attacks include a $1.1 billion cut in public broadcasting funds to NPR and PBS stations in a recission bill. 
• Trump's Executive Order which accused the media outlets of failing to create “fair, accurate, or unbiased” reporting.
• The Corporation For Public Broadcasting will probably close in 2026. Ironically, the populations hit hardest by this loss will be rural areas that voted in huge numbers for Donald Trump. 

Attacks on Public Access to Information:

• More than 8,000 web pages across more than a dozen government agencies have been purged. That makes it impossible for journalists to do their jobs. This is like an Orwellian Ministry of Truth. 
• The purge is being carried out so incompetently that even images of the Enola Gay (World War II B-29 bomber) were censored, apparently because of the word "gay." 

 Attacks on Student Press:

• Rumeysa Ozturk is a Turkish national and graduate student at Tufts University in Massachusetts. After co-authoring this op-ed, she was detained by ICE. The ability to write an opinion piece without fear of arrest is at the core of what the First Amendment is about. 
• Chilling effects: The Heights, which is the Boston College student newspaper, said that international students are too afraid totalk to the paper for fear of having their visas revoked.
• In April, student media groups warned of unprecedented threats to the student press. 

We close with this depressing statement from Reporters Without Borders: "After a century of gradual expansion of press rights in the United States, the country is experiencing its first significant and prolonged decline in press freedom in modern history, and Donald Trump’s return to the presidency is greatly exacerbating the situation."

Finally, a piece of advice: be careful about celebrating the silencing of the press that you don't like. The next day it will be press that you DO like that will be censored. We must all work in solidarity to ensure freedom of the press remains free of government censorship and other forms of bullying. 

COVID-19's Challenge to Free Speech

Note: For a video version of this rant, click HERE.

In 1963 the Speech Association of America (SAA) adopted a "Credo For Free And Responsible Communication in a Democratic Society." The SAA later became the National Communication Association, and reaffirmed the Credo in 2017. 

As someone who regularly teaches a course called "Freedom of Speech in the United States" and relies on First Amendment freedoms to provoke students, produce blogs, and engage in other forms of activism, I find myself coming back to the Credo often. Regularly reminding myself of the Credo's six principles helps me to make sure I am holding my students and myself to high standards worthy of the life and death struggles for freedom that preceded us and continue to this day. 

We free speech advocates have always assumed that active use of First Amendment freedoms enhances civic health. COVID-19 challenges that assumption, as we now find ourselves in a bizarre and disturbing place where some citizens insist that "peaceful assembly" includes the right to risk infecting oneself or others with a deadly disease at a public gathering. Huge segments of social media and cable television denigrate and distort peer-reviewed medical findings while amplifying junk science. Meanwhile, the President of the United States treats daily briefings as a kind of Open Mic Night where he feels free to riff on whatever comes to his mind, even to the point of suggesting that ingesting bleach or disinfectants might cure the virus. In another essay I've argued that these types of bullshit, bluster, and bullying tactics are never particularly helpful in any context, but are absolutely useless when confronting a novel coronavirus. 

Forgive me for having to state what is or should be an obvious point: Just because an act of communication might technically deserve First Amendment protection, it does not follow that that same act of communication is responsible. In "normal" times, irresponsible communication in the public sphere certainly produces negative consequences, from distracting our attention away from urgent issues to defaming good people to delaying actions needed to fix what's broken in our society. 

In the COVID-19 era, the irresponsible communicative acts of distraction + defamation + delay = DEATH. (I want to say that we can and must do better, but my fear is that the response will be "OK Boomer."). 

What follows is the Credo for Free and Responsible Communication in a Democratic Society. Please read it, reflect on it, and use it as a way to hold yourself and others accountable for your and their communication practices. Be especially mindful of the admonition in principle #5 that we should "expose abuses of the communication process." Those abuses, some of which I mentioned earlier, are having a profoundly negative effect on our ability to loosen the deadly grip of the coronavirus on our nation and world. 

Here is the Credo: 

Recognizing the essential place of free and responsible communication in a democratic society, and recognizing the distinction between the freedoms our legal system should respect and the responsibilities our educational system should cultivate, we members of the Speech Communication Association endorse the following statement of principles: 

Principle #1: We believe that freedom of speech and assembly must hold a central position among American constitutional principles, and we express our determined support for the right of peaceful expression by any communicative means available. 

Protesters, many of them armed, berate security officers at the Michigan State Capital. Though protesters had their temperatures checked before entering the building, we know that coronavirus carriers are often asymptomatic. Can this possibly be a form of "peaceful expression?" (photo from BBC News)

Principle #2: We support the proposition that a free society can absorb with equanimity speech which exceeds the boundaries of generally accepted beliefs and morals; that much good and little harm can ensure if we err on the side of freedom, whereas much harm and little good may follow if we err on the side of suppression. 

Principle #3: We criticize as misguided those who believe that the justice of their cause confers license to interfere physically and coercively with the speech of others, and we condemn intimidation, whether by powerful majorities or strident minorities, which attempts to restrict free expression. 

Michigan Governor Gretchen Whitmer has faced the most hostile reaction to stay-at-home orders, from threatening signs to armed militia members showing up at her private residence. Polls show support for the governor's coronavirus actions even as strident protesters try to coerce her into retreat.  Masses of people who understand and accept the need to maintain stay at home orders until there is a clear downward trend in coronavirus cases--with full knowledge of the economic harm the orders are causing their communities and them personally--are the true "silent  majority." 

Principle #4: We accept the responsibility of cultivating by precept and example, in our classrooms and in our communities, enlightened uses of communication; of developing in our students a respect for precision and accuracy in communication, and for reasoning based upon evidence and a judicious discrimination among values. 

Principle #5: We encourage our students to accept the role of well-informed and articulate citizens, to defend the communication rights of those with whom they may disagree, and to expose abuses of the communication process. 

[Note: Chris Hayes' exposure of "coronavirus trutherism"is a good example of how a public sphere pundit can expose abuses of the communication process. MSNBC is not a great news and opinion network, and not everything on Fox is awful; but one of the worst media tragedies of our time is that the loyal followers of each will never see the segments worth seeing on the "other side." Fox viewers really do need to see this segment by Hayes--it might literally save their lives.] 

Principle #6: We dedicate ourselves fully to these principles, confident in the belief that reason will ultimately prevail in a free marketplace of ideas. 
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Will reason ultimately prevail in the free marketplace of ideas? Given the extreme levels of misinformation and disinformation--some of it shared innocently on social media but much of it promoted willfully by bad faith actors--I am not sure that reason WILL prevail. We need to prepare ourselves for what will in our public sphere probably be a long period of malicious efforts to distract us from the urgency of the crisis at hand and defame  those good faith actors doing all they can to lead us through it. Distraction and defamation will succeed only in delaying actions necessary to help solve this terrible problem. Remember, distraction + defamation + delay = death. 

Some seem to think that reason would stand a better chance of prevailing in the marketplace of ideas if private sector social media companies would simply censor all of the bad faith nonsense out there. If history has taught us anything, it's that censorship does not stifle stupidity, and more dangerously any censorship regime gives too much power to whoever decides what communicative acts are "in" and what communicative acts are "out." You might love the censor when he shuts down what you despise, but it's only a matter of time before he cancels you too. 

If people of goodwill refuse to act, then documents like the Credo For Free and Responsible Communication in a Democratic Society are nothing more than pious platitudes on a page. I urge all of us to digest the principles and take an honest inventory of where we come up short. Monitoring my own communicative weaknesses and pledging to do better puts me in a much better position to expose the weaknesses of others. The alternative is to continue living in tribal, self-righteous bubbles overflowing with BS, bluster, and bullying. How's that working for us?