The winter sun sets, the shadows lurch and fade, and a man sits crouched over his desk. He writes furiously; his papers struggle to absorb the intensity, but it will be over soon. He has a deadline to meet, after all, and the truth must get out. His patron demands it.
A few weeks later, his scathing critique is published. The president’s “reign” has been, according to the author, “one continued tempest of malignant passions.” The president has been a “repulsive pedant,” a “gross hypocrite,” and “one of the most egregious fools upon the continent.” The author and his patron smile—their book will win over America.
By May, the author finds himself in prison. Nine months behind bars, $400 in fines. The crime: “false, scandalous, and malicious writing against the said President of the United States.” Thomas Jefferson smiles. He had told James Callender that his book “cannot fail to produce the best effects.” Callender’s imprisonment went according to plan. This was a win for Vice President Jefferson’s Democratic-Republicans.
Callender, a Scottish journalist living in Virginia, was arrested and imprisoned under the auspices of the Sedition Act of 1798. The Act, a misguided attempt by Adams’s Federalists to curtail anarchy and opposition, allowed the government to imprison people whom it believed authored contrary or overly-malicious statements about the government, its mission, or its personnel. It had a far more impactful effect: it galvanized Democratic-Republican opposition.
The timing of the Sedition Act was odd, and its conflict with the recently ratified First Amendment of the Constitution (promising that Congress would pass no law “abridging the freedom of speech, or of the press”) did not go unnoticed. James Madison, the author of the First Amendment, and then-Vice President Thomas Jefferson led a vocal charge against this new law. In secret, the two of them wrote the Kentucky and Virginia Resolutions. These Resolutions declared that the state governments of Kentucky and Virginia found the Alien and Sedition Acts unconstitutional, and that state nullification of the laws was the proper reaction. The seed had been planted; Adams’s administration was anti-free press and anti-free speech. This did not sit well with the new Americans—indeed, following Adams, the Federalist party never held another presidential seat.
Luckily for Adams, and unluckily for the people, 1798 came before 1803, and so the Alien and Sedition Acts passed in a time when Supreme Court judicial review was still a dubious concept. As such, they were not challenged in the Supreme Court. Instead, President Jefferson overturned the acts, pardoned everyone indicted under them, and paid back all fees collected.
You’d be forgiven for thinking that Jefferson’s reversal of the Sedition Acts ushered in a new era of press freedom in the fledgling US. Besides, Jefferson was the man who, in 1787, wrote that “[t]he basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate to prefer the latter.” Yet, things did not progress so cleanly.
In 1802, Jefferson’s clandestine funding of Callender came back to haunt him. In September of that year, Harry Croswell, a Federalist journalist for The Wasp, published a short, stinging attack on Jefferson’s character. The attack, a rebuttal to the Republican notion that Federalists were pathetically grasping at anything to attack Jefferson’s upstanding character, accused the President of knowingly funding false claims against Adams and Washington. Jefferson, in a stunning about-face, encouraged the use of state sedition and libel laws to punish Croswell. New York (home of The Wasp) took notice—Croswell was convicted of two counts of libel and sedition. He immediately appealed.
In 1804, People v. Croswell reached the New York Supreme Court. Croswell’s case was argued by none other than the prominent anti-Jefferson, Alexander Hamilton. As was his style, he spoke for hours. His key defense was a logical once: the truth is an adequate protection against libel. Truth justifies any statement. As obvious as that sounds today, the argument was not codified in libel law in the early 1800s. And while Hamilton may have failed at the court, (a tie at the court meant the conviction stood) states found Hamilton convincing. Truth became protected speech in several states as soon as 1805. Jefferson was furious. He wrote to an editor in 1807 that “Nothing can now be believed which is seen in a newspaper. Truth itself becomes suspicious by being put into that wretched vehicle.” Freedom of the press, indeed.
Presidents have always had a bit of a contentious relationship with the press. Many historians believe constant attacks in early press encouraged Washington to retire. President George W. Bush called New York Times reporter Adam Clymer a “major-league asshole.” President Kennedy once called New York Times Washington bureau chief, James Reston, with the explicit request that Reston fire the war reporter David Halberstam (who had been contradicting the White House’s narrative that the US was not getting involved in a conflict in Vietnam).
The press and the administration are forever in conflict due to their essential natures. To garner support for actions and policies, the administration needs to control the narrative, painting its policies as necessary and itself as successful. The press serves a different, adversarial function: to cut through that narrative and share the actual facts. It’s easy to see how these functions can come to a head, especially in times of paranoia and fear when presidents believe the rapid implementation of their agenda is essential to national security.
Today’s political discourse has its closest parallel in the presidential discourse of the late 1960s and early ‘70s. President Nixon, the congenitally paranoid commander-in-chief, constantly attacked the press and the validity of its platform. Nixon rolled into Washington with a plan: clearly and repeatedly denounce the media as biased and elitist, and provide information directly to the people in the form of television appearances. He kicked this plan into gear even before his inauguration. He announced his cabinet as one unit on television on December 11, 1968, rather than going the traditional route of announcing them to the press one by one as they’re selected.
Once in power, Nixon’s animus towards the press reached new heights. Many of the President’s hard-ball tactics (which, according to the Washington Monthly, included but were not limited to: illegal, warrantless wiretappings of journalists critical of the administration, several antitrust lawsuits against major networks, drafted legislation that declared the receiving of leaks a felony, and a partnership with Hoover’s FBI to compile a list of “homosexuals known and suspected in the Washington press corp”) were paraded before the people. Nixon counseled his aides that it “is good politics for us to kick the press around.” He told his staff to “pick the twenty most vicious Washington reporters” and “just kill the sons of bitches” by leaking derogatory information about them. He ran an official White House enemies list, one that listed over 200 names at its longest.
Two situations underscore Nixon’s contentious relations with the press. The first involved Nixon by proxy. During Nixon’s campaign, suspicion about his VP choice, Spiro Agnew, started to bubble up in the media. There was suspicion that Agnew, as governor of Maryland, had received kickbacks from public contracts in architecture, engineering, and landscaping. This suspicion culminated in a 1968 New York Times editorial calling Agnew “not fit to stand one step away from the Presidency.”
Nixon went on the offensive. On CBS’s Face the Nation on October 27, 1968, Nixon called the Times editorial “the lowest kind of gutter politics a great newspaper could possibly engage in,” and informed the populace that he would be demanding by law a retraction of the piece the next day. The NYT stood by their piece and refused Nixon’s demands. In fact, in a show of defiance, they reprinted the offending editorial the same day, and then published another on October 30, again charging Agnew with an egregious failure to separate personal gain from public office.
The fight did not gain much traction in the public eye. By the end of 1968, peace talks with the North Vietnamese took all public interest (the very peace talks that Nixon ordered “monkey wrench[ed]” on October 22, 1968, to avoid giving his opponent, VP Hubert Humphrey, a political edge). This did not stop Nixon from escalating. Over a year later, Nixon and his speechwriter, Pat Buchanan, wrote up a bitter attack on the media that they then handed to Spiro Agnew. On November 13, 1969, Agnew delivered a speech that rings oddly familiar, calling the media “commentators and producers [that] live and work in the geographical and intellectual confines of Washington, D.C., or New York City” and noting that the “views of the majority of this fraternity do not—and I repeat, not—represent the views of America.” Millions of people tuned in and an outpouring of support for Agnew and his message were sent by letter both to the networks and to him personally.
It’s difficult to say who ultimately won the fight. Nixon certainly had the loudest and clearest message that resounded with the most people. But in 1970, US attorney George Beall opened an investigation into corruption in Baltimore. He eventually chanced upon a contractor who claimed to have been paying Agnew for years. The investigation culminated with Agnew’s resignation as VP in 1973. He was disbarred by Maryland, given three years probation, and was forced to pay back the state $268,482 that he had taken in bribes over the years.
Nixon’s second major fight with the media led to probably the most influential Supreme Court case in the history of the American press. After Vietnam peace talks fractured in 1968, America remained engaged in Vietnam for several more years. Public opinion was firmly against the war by the early ‘70s. To review the US’s role in the war and the region, President Johnson’s Secretary of Defense, Robert McNamara, commissioned a top-secret, comprehensive report. The investigation and report pulled no punches—it soon ballooned to 47 volumes and more than 7,000 pages.
In March 1971, Daniel Ellsberg, a military analyst with the RAND Corporation who had contributed to the findings, took the volumes, photocopied them, and sent them to reporters at the NYT. The NYT spent considerable time combing through the report and decided that they had a moral obligation to share the information. On June 13, 1971, the paper published their first review of the findings in the report, noting that, amongst other things, President Johnson’s administration believed from very early on that the war could not be won, and had systematically lied to both the public and to Congress.
The incident represented a bit of a contradiction for Nixon. While he was incredibly secretive and opposed to leaks, he also liked any information that disparaged his political opponents (in this case, the two previous Democratic administrations). His original response was to do nothing. But thanks to counsel by Henry Kissinger and Nixon Chief-of-Staff H.R. Haldeman, both of whom believed this set a disturbing precedent for the sharing of future national secrets and the public’s perception of presidential fallibility, this response did not last long.
Ellsberg was immediately charged with a felony under the Espionage Act of 1917, making the point that he did not have the authority to publish classified information related to national security. He eluded capture for almost two weeks during which he leaked the report, now known as the Pentagon Papers, to 18 other newspapers including the Washington Post. Nixon Attorney General, John Mitchell, wrote the Times to order the publication ceased. The paper, expectedly, refused. All avenues exhausted, Mitchell sued the paper, citing “irreparable injury to the defense interests of the United States.” Concurrently, the Post began publishing the Papers themselves. Mitchell requested an injunction to cease their publication in district court but was refused. Judge Murray Gurfein of the Southern District of New York (ironically appointed that very week by Nixon), wrote “Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, an ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.” Nixon’s administration appealed.
The case, New York Times Co. v. The United States, rapidly ascended to the Supreme Court, where it was agreed to be heard simultaneously with the administration’s legal battle against the Post. The argument centered on whether or not the Nixon administration had enough legal justification to claim “prior restraint,” the suppression of published or broadcast material thought to be harmful or libelous. Nixon claimed precedent in a 1951 case, Dennis v. United States, one that focused on an exception to free speech and publication if the speech involved overthrowing the government. This case set up the “grave and irreparable danger” rule: if a message represents a grave and irreparable danger to the American public, prior restraint was an adequate reason to suppress the message. It was then up to the government to demonstrate that publication of the Pentagon Papers represented such a danger.
This was an uphill battle and not one that Nixon won. On June 30, in a 6-3 decision, the Supreme Court ruled that the administration had not met this “heavy burden” of proof. Justice Hugo Black, in his majority opinion, wrote “The government’s power to censor the press was abolished so that the press would remain forever free to censure the government. […] And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die.” The Times and the Post were immediately allowed to resume publishing the papers.
And what happened to Ellsberg, the leaker? A mistrial was declared and charges dismissed in 1973 when it was discovered that the Nixon administration (using the same two employees convicted in the Watergate case) had broken into Ellsberg’s psychiatrist’s office and attempted to steal his files, and had wiretapped Ellsberg’s phone conversations without a court order. Of course, this foreshadowed Nixon’s eventual downfall.
As far as today’s climate goes, it’s difficult to not see a lot of Nixon in Trump. Nixon, in a 1972 call with Kissinger, called the press “the enemy.” Trump tweeted that the media “is the enemy of the American people.” Trump’s top strategist, Steve Bannon, called the press “the opposition party.” In that regard, it’s also difficult to say that Trump brings anything new with his derision. All presidents from all parties have fought the press in some way.
But one must be aware that there’s a difference between public and private derision. Nixon’s branding was in private, on a phone call he recorded. Trump has repeatedly denounced the importance of the press to the creation of an informed citizenry. The advent of social media has weakened the traditional avenues for the dissemination of information. While this democratization is good, even necessary in most cases, it risks putting all sources of information on equal footing.
Stories and facts, when the cards are laid on the table, when the static and the noise is cleared away, tend to back up the info shared by the press. Take, for example, Bush’s War in Iraq. Official information told the story of an overthrow of dictators and a fledgling, beautiful democracy. Embedded reporters told a different story. Dan Senor, chief spokesman for the US transitional government (the Coalition Provisional Authority) in Baghdad, summed it up perfectly: “Off the record: Paris is burning. On the record: stability and security are returning to Iraq.”
Where Trump differs from most previous presidents (basically, all but Nixon) is his widespread, undiscriminating denunciation of the press as an entire institution. He’s not trying to get people to cover him better. If he were, the constant rebuke of the media as “fake news” would be counterproductive. The goal instead seems to be convincing the populace that only Trump and his administration are a trustworthy arbiter of facts. Rep. Lamar Smith admitted as much himself when he said on the floor of the House that it was “Better to get your news directly from the President. In fact, it might be the only way to get the unvarnished truth.”
There’s a particular and pressing danger to this way of thinking, one that reeks of a state-run media. And critiques across party lines have said as much. Fox News’s Chris Wallace pushed Chief-of-Staff Reince Priebus on Trump’s rhetoric, arguing that Trump went far beyond simply critiquing a story he didn’t like. Wallace continued “He said the fake media, not certain stories, but the fake media are enemies of the country. We don’t have a state-run media in this country, that’s what they have in dictatorships.”
Senator John McCain echoed Wallace, telling NBC News that “dictators get started by suppressing free press.” McCain’s point is important. He elaborated to Chuck Todd, telling him “I hate the press. I hate you especially. But the fact is we need you. We need a free press. We must have it. It’s vital. … If you want to preserve democracy as we know it, you have to have a free and many times adversarial press.”
Trump is a master of many things and inept at many others. But given his background as a reality star, he’s unbelievably tuned in to the importance of image and narrative. He has shown himself to be incredibly adept at branding. In an election season plagued by actual, verifiably fake news stories, Trump latched on to the term, widening the brand to encompass media outlets that reported negatively on him. Indeed, he called the media “fake” 20 times in 70 minutes in his Feb 16 press conference. Many of his supporters appreciate that branding, just as Nixon’s did. It validates their suspicions, true or not.
Journalism, in many cases, is dangerous. Trump tweeted his denunciation just more than fifteen years after the death of Wall Street Journal South Asia bureau chief David Pearl, kidnapped and murdered by terrorists in Pakistan. Across the world, more and more populist leaders have resigned the press to a lower, hated class. Turkey’s Erdoğan called journalists “agents of subversion” and “terrorists.” Iran’s Ali Khamenei described the press as “a base of operations by foreign enemies inside this country.” Trump is not unique in these attacks. And he might not have a grand plan to control the narrative and America’s outlook on the Fourth Estate. But that doesn’t mean his words aren’t damaging to intellectual discourse and that the American populace should not stand against them.
Aside from Nixon, presidents have always viewed an adversarial press as a necessary evil. Ronald Reagan’s press spokesman, Larry Speakes, said, “We’re just always going to have this adversarial relationship.” President Reagan owned this and arrived at the conclusion that it was for the best. “Every president will try to use the press to his best advantage and to avoid those situations that aren’t to his advantage,” he said to his 1988 Washington Correspondents’ Dinner. “The press can take care of itself quite nicely, and a president should be able to take care of himself as well.”