National Press Club

Panel sees less transparent White House after election under either outcome

October 13, 2016 | By Julia Haskins | juliaannehaskins@gmail.com

While it’s unlikely that the next president will have the power to greatly undermine First Amendment protections, the media climate will hardly be transparent under the new administration, according to a group of journalists and lawyers who spoke at a Press Club Journalism Institute event Oct.12

Following a video clip of Republican presidential candidate Donald Trump slamming media reports that have portrayed him negatively, moderator Chuck Tobin, partner at Holland & Knight LLP, asked the panelists whether the candidate could really follow through on his threats against reporters and news organizations.

Probably not, said Kenneth Jost, author of the Supreme Court Yearbook and adjunct professor at the Georgetown University Law Center.

“When Donald Trump uses the phrase, ‘I’m going to open up the libel laws’...that’s a gross oversimplification,” he said.

Jost pointed to historic Supreme Court cases to explain that actual malice must be demonstrated to make a case for libel. And though possible, proving actual malice is extremely difficult.

Adam Liptak, Supreme Court correspondent for The New York Times, agreed with Jost’s assertion that Trump would face an uphill battle in his attempts to sue media outlets for libel. However, Trump could possibly find success in appointing someone to the Supreme Court who sought to scale back the actual malice standard, which was established in the landmark case New York Times Co. v. Sullivan.

But that’s not a major concern at the moment, especially with the current justices, according to Liptak. The high court will not necessarily expand press freedoms, but it won’t reduce them, either.

“It’s in the fabric of the country now,” he said. “No one wants to cut back on it.”

It’s not just Trump who has troubled journalists. Whereas he has been more outspoken about his objections to the media, Democratic presidential nominee Hillary Clinton’s relationship with the press is subtle but also strained, said Anita Kumar, White House correspondent for McClatchy Newspapers.

“Hillary Clinton famously hasn’t really gotten along with the media since she was First Lady,” Kumar said, pointing to Clinton’s private email server as an example of her questionable attitude toward transparency. Kumar also criticized Clinton for abandoning the press after falling ill at a September 11th memorial ceremony.

That’s not to say that Kumar is optimistic about how members of the media would be treated under a Trump administration, though. She fears that day-to-day press operations could be interrupted with Trump as president, with reporters afforded less White House access.

“A lot of attention has been paid to Trump, but we [in the press corps] think that [with] whoever wins the election, that access will be less than it currently is,” Kumar said.

Government transparency has long been on the decline, said Katie Townsend, litigation director for the Reporters Committee for Freedom of the Press.

President Obama’s pledge on his first day in office to create the most transparent administration in history has not held up, Townsend said. She noted that despite Freedom of Information Act reforms, assertions of exemptions to FOIA requests have actually increased under the Obama administration and deadlines have routinely been dismissed.

“Saying we take FOIA really seriously as an administration is not enough,” Townsend said. “It’s really difficult to counteract the delays and the backlogs and make those improvements. I think it's only going to get worse.”

The future of FOIA practices, Townsend said, will depend on the president, as well as the attorney general whom he or she appoints.