Donald Trump began his presidency decrying the press as “the enemy of the people.” He’s ending it with the false and alarming assertion that President-elect Joe Biden “only won in the eyes of the fake news media.” In between, the press has faced norm-shattering, deeply dangerous attacks while the primacy of facts and the public’s right to know have been severely degraded.
During the Trump years, the Reporters Committee for Freedom of the Press has found itself fighting previously unimaginable legal battles. In lawsuits and amicus briefs, our attorneys have urged courts to restore reporters’ access to the White House and sued federal agencies over their refusal to release public records. We have advocated for the clearly delineated independence of the Voice of America and against intentional law enforcement assaults on journalists. And we have had to stand up against blatantly unconstitutional efforts to prevent publication of newsworthy information.
The relationship between the press and the presidency has never been an easy one. But now, with the incoming Biden administration, there is an opportunity to restore the ability of the press to fulfill its constitutional role as an integral part of a healthy democracy. Toward that end, we suggest six immediate steps:
1. Prioritize press access. Biden has already said he intends to restore traditional White House briefings. During the Trump administration’s sporadic press conferences, reporters asking tough questions were often rebuffed, threatened and ridiculed, and journalists whose coverage was perceived as unfavorable faced challenges to their press credentials — a phenomenon journalists are more accustomed to facing abroad when covering authoritarian regimes. The Biden administration should make it clear from the outset that it values the free flow of information from the White House and executive agencies, and that the tenor of journalists’ coverage will play no role in their access, press passes or pool assignments.
2. Reverse the disturbing trend of law enforcement targeting journalists with force and arrest. Journalists’ presence in the field is constitutionally protected. But in 2020, the U.S. Press Freedom Tracker has, to date, confirmed 87 arrests of journalists and 150 physical attacks — from Portland to Minneapolis, from New York’s City Hall to Washington, D.C.’s Lafayette Square. The relative safety of reporters wearing clear credentials must be restored.
3. Appoint an attorney general who will ensure that federal investigations into newsgathering and reporting are limited. Longstanding protocols at the Justice Department require the U.S. attorney general to sign off before reporters can be questioned or their phones or email records seized. This appeared not to happen during the Trump administration when, for example, FBI agents participated in an unlawful police raid on the home of San Francisco journalist Bryan Carmody, interrogating him about the source of a leak.
4. Work with Congress to pass federal legislation protecting press rights. A positive first step would be a federal shield law, which would limit when journalists can be forced to reveal their sources in court. In addition, the new president should support a federal statute to combat meritless lawsuits designed to muzzle journalists and others exercising their First Amendment rights by saddling them with heavy legal expenses. Likewise, the Biden administration should support enhancements to the Freedom of Information Act and other measures to promote transparency.
5. Rescind the Trump executive order purporting to address censorship on social media platforms. While one can have a debate about the role of Big Tech in our society, everyone should agree that any attempt by the government to root out what it perceives as bias is deeply threatening to First Amendment rights and robust public discourse.
6. Undo the damage that has been done to press freedom abroad. The Biden administration should demonstrate its commitment to global press freedom and restore the editorial independence of Voice of America and other congressionally-funded international broadcasters administered by the U.S. Agency for Global Media. The Trump administration tried to co-opt these long-trusted news organizations as purveyors of state-controlled propaganda. Biden has already promised to remove those responsible at the agency, and his administration should support further steps to guarantee that Voice of America’s editorial autonomy is protected in future administrations. We’re confident that a Biden administration won’t find common ground with foreign powers who have criminalized what they parrot as “fake news.” But we urge him to make freedom of speech a tenet of U.S. foreign policy and to apply pressure to governments that don’t observe it.
James Madison, the main author of the Bill of Rights, wrote that the “censorial power is in the people over the government, and not in the government over the people.” The new administration has the opportunity to reassert this fundamental principle.
Bruce D. Brown is executive director of the Reporters Committee for Freedom of the Press.