At the end of Donald Trump’s visit to the New York Times on November 22, the newspaper’s publisher Arthur Sulzberger Jr. handed over to his CEO, Mark Thompson, for one last question: “After all the talk about libel and libel laws, are you committed to the First Amendment to the Constitution?”
“I think you’ll be happy,” Trump said, adding that relaxing defamation laws might mean that he would get sued more often himself. “So I think you’ll be OK.” There are no such federal statutes. Presented with an opportunity to defend free speech, he blustered.
The First Amendment, adopted on December 15, 1791, states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The Supreme Court’s modern interpretation of this text is expansive. The court has ruled that the amendment’s protection extends to Christian fundamentalists picketing the funerals of US soldiers with signs reading “God hates fags”. It has held that money is speech, and that anonymous political donations constitute free expression.
During the Vietnam War, it reversed the conviction of a man jailed for wearing a “Fuck The Draft” jacket in the Los Angeles County courthouse. In a 1989 case, Texas v Johnson, it ruled that burning the American flag is protected speech, too.
Conservative Justice Antonin Scalia, who died earlier this year, was part of the 5-4 majority in that case. In 2015 he reiterated his position: “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.” Even if Trump appoints a judge with a narrow view of First Amendment rights to replace Scalia, the court’s definition of free speech appears settled.
On Tuesday, Trump tweeted: “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” His intent may have been to distract from a New York Times article about his many conflicts of interest, but the signal that he will not tolerate dissent could hardly have been more clear.
Even Putin’s Russia doesn’t cut up the passports of its critics. The first draft of the repressive Yarovaya Law adopted in June, ostensibly to combat terrorism, proposed that the punishment for “joining an international organisation” or “incitement to hatred” should be loss of citizenship, but after a public outcry, this provision was struck from the bill.
The slow strangling of free speech in Russia, Hungary, Turkey and India demonstrates how Trump could mute and marginalise dissent without infringing First Amendment rights. This is something that debates about whether he is a fascist often neglect to consider: the nature of autocracy has changed.
“This vision of authoritarian leaders who are going to shoot their political opponents and raid the offices of newspapers without a warrant, that’s not actually how suppression occurs,” says Yale Human Rights Professor Nick Robinson. “What’s so striking about the rise of these authoritarian leaders in democracies is that the actions they’re taking are generally legal.”
In an essay published in the New York Review of Books two days after Trump’s election victory, Russian journalist Masha Gessen suggested six rules for survival in an autocratic regime. The first was: “Believe the autocrat.”
During the campaign, Trump made his attitude to the Fourth Estate plain by shutting out media organisations that published critical reports, picking fights with individual journalists, threatening to change libel laws so that “when they write hit pieces, we can sue them” and encouraging his supporters to abuse the “dishonest scum” in the press pen.
White House press conferences are a convention, not a legal obligation. Trump last took questions from reporters on July 27, and in the final weeks of the campaign, he limited his media appearances to Sean Hannity’s show, leading fellow Fox News host Megyn Kelly to observe that he was in the “presidential protection program”.
“Access to powerful figures is the lifeblood of journalism. If the New York Times and Washington Post and Associated Press are all told that they’re not ever going to get an interview with a top official… that would have a very chilling effect,” says Harvard International Affairs Professor Stephen Walt.
“They might well become more openly adversarial. But I think it’s an open question what effect that would have. He would be saying ‘I’m not censoring anybody, I’m not threatening the First Amendment… We’ll have press conferences, we’re just not going to invite those losers.’ And it’s possible that a lot of Americans will say ‘yeah, that’s right.’”
Trump has 16.5 million followers on Twitter and a semi-official media channel in Breitbart News, run by his chief strategist Stephen Bannon. Its reach, amplified by conservative talk radio and Fox News, was evident in the 70% of Trump supporters who told exit pollsters they believed the election would be rigged.
On Nov 27, Trump tweeted that he won the popular vote “if you deduct the millions of people who voted illegally,” and in his alternative reality, in which crime rates are at an all time high and millions of Muslims are massed at the USA’s borders, this was ‘true’ too. On CNN this week, a panel of Trump supporters nodded along as a woman said President Obama had encouraged undocumented immigrants to vote and California had made it legal.
Putin has a state-run television network, RT, to shape the truth. In Nicaragua, the state owns one channel and the ruling Ortega family owns two more. “The first strategy is to create a media environment where everyone knows what they’re supposed to think. People know when they’re crossing a line and they feel tension and hesitation before they do so,” says Yale History Professor Timothy Snyder.
“I wouldn’t even exclude the attempt to found an official American propaganda channel with federal money. That’s going to be the general direction: just hover over everything and dominate everything and bully people.”
Billionaire Trump backer Peter Thiel recently bullied Gawker Media into bankruptcy by funding a libel suit brought by wrestler Hulk Hogan. In Turkey, Prime Minister Recep Tayyip Erdoğan has harassed the independent media companies that his allies couldn’t buy with lawsuits and regulations (since July’s attempted coup, he has moved on to jailing journalists).
Hungary’s main opposition newspaper, Népszabadság, folded in October, after being starved of advertising revenue by corporations loyal to Viktor Orbán’s regime. “They just went out of business. It’s not that anyone shut them down, but these kind of tactics behind the scene are what’s putting them out of business,” says consultant political scientist Jay Ulfelder. “And of course the remaining outlets get into self-censorship as a way to keep their jobs.”
In May, in response to a series of critical articles in the Washington Post, Trump mused that Amazon, the main business of Post owner Jeff Bezos, has “a huge antitrust problem”. As president, he could direct the Federal Trade Commission to bring suit against the company. The possibilities are endless for an executive prepared to politicise regulatory agencies to settle scores.
Former US President Richard Nixon and his chief of staff, H.R. Haldeman instructed the Federal Bureau of Investigations and the Internal Revenue Service to go after journalists on their enemies list. In India, Narendra Modi’s government has been accused of auditing NGOs and individuals that have been critical of his policies.
“Clearly we have a leader in power now that personalises that power. And he seems to be willing to at least threaten to use the force of the state against people that attack him,” says Robinson. As Trump himself put it, in his 2007 book Think Big And Kick Ass: “When someone intentionally harms you or your reputation, how do you react? I strike back, doing the same thing to them only ten times worse.” Believe the autocrat.
Trump is now in charge of the most extensive surveillance operation ever built. The potential for using embarrassing leaks to smear political opponents is enormous. “I’d be very surprised if there weren’t a number of people in the incoming administration that think that’s the right thing to do,” says Snyder. “I’m not saying it’s certain to happen, but it would be crazy for Americans not to worry about it.”
None of this is certain to happen. The point is that it could, and that the laws and institutions that have protected democracy in the United States of America for more then two hundred years need to be actively defended. Trump is exceptionally vengeful and litigious. He ran for president as an authoritarian strongman, and won. Praising Putin is not the same as intending to emulate him, but the danger is real.
Last month, a group called Turning Point USA published a database of the names, locations, photographs and the most incendiary comments of more than a hundred liberal academics. Encouraged by Trump’s violent rhetoric and contempt for journalists, his supporters have been sending death threats to reporters, hacking into their emails and publishing their addresses online.
“There are ways to intimidate speech and suppress dissent that are compatible with a narrow legal deference towards freedom of speech,” says Brown University Political Science Professor Jeff Colgan. “The greatest risk of this shadowy list that’s funded by unnamed donors is that it leads to self-censoring among academics who don’t want to get into political fights. There’s no law being broken, but it can have a chilling effect.”
No-one is suggesting that Trump is going to purge thousands of university lecturers, as Erdoğan did in Turkey. He isn’t going to charge student protesters with sedition, as Modi did following protests at Jawaharlal Nehru University in February. But he has given his supporters permission, explicitly and implicitly, to harass and intimidate people that oppose his agenda.
Threatening to make flag-burning a crime frames dissent as unpatriotic. “A lot of people in this country love the flag, and he can use it as a wedge issue to create a climate in which dissent, whether against country or against him… is something that’s just not tolerated,” says Robinson. In India, the phrase Modi’s supporters use is “anti-national”. On Wednesday, Breitbart called Kellogg’s cereal “as un-American as it gets” for pulling advertising from the site.
“The most important finding from the democratic erosion literature is that breakdown usually happens when it is unanticipated and supporters of democracy fail to set aside their differences and mobilise,” says Colgan. “And I’m not sure Americans are prepared to look at other countries and other times in history and say ‘this could affect us too.’”