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On May 17, while delivering a graduation speech to cadets at the Coast Guard Academy in New London, Connecticut, a scandal-plagued President Donald Trump took the opportunity to complain, yet again, about the news media. No leader in history, he said, has been treated as unfairly as he has been. Shortly thereafter, when the graduates presented Trump with a ceremonial sword, a live mic picked up Homeland Security chief John F. Kelly telling the president, "Use that on the press, sir!"

Kelly was presumably joking, but the press isn't laughing. Presidents have complained bitterly about reporters since George Washington ("infamous scribblers"), but Trump has gone after the media with a venom unmatched by any modern president—including Richard Nixon. At campaign rallies, Trump herded reporters into pens, where they served as rhetorical cannon fodder, and things only got worse after the election. Prior to November 8, the media were "scum" and "disgusting." Afterward, they became the "enemy of the American people." (Even Nixon never went that far, noted reporter Carl Bernstein of Watergate fame. Nixon did refer to the press as "the enemy," but only in private and without "the American people" part—an important distinction for students of authoritarianism.) 

On April 29, the same day as this year's White House Correspondents' Dinner (which Trump boycotted), the president held a rally in Pennsylvania to commemorate his first 100 days. He spent his first 10 minutes or so attacking the media: CNN and MSNBC were "fake news." The "totally failing New York Times" was getting "smaller and smaller," now operating out of "a very ugly office building in a very crummy location." Trump went on: "If the media's job is to be honest and tell the truth, then I think we would all agree the media deserves a very, very big, fat failing grade. [Cheers.] Very dishonest people!"

Trump's animosity toward the press isn't limited to rhetoric. His administration has excluded from press briefings reporters who wrote critical stories, and it famously barred American media from his Oval Office meeting with Russia's foreign minister and ambassador to the United States while inviting in Russia's state-controlled news service.

Before firing FBI Director James Comey, Trump reportedly urged Comey to jail journalists who published classified information. As a litigious businessman, the president has expressed his desire to "open up" libel laws. In April, White House chief of staff Reince Preibus acknowledged that the administration had indeed examined its options on that front.

This behavior seems to be having a ripple effect: On May 9, a journalist was arrested in West Virginia for repeatedly asking a question that Tom Price, Trump's health secretary, refused to answer. Nine days later, a veteran reporter was manhandled and roughly escorted out of a federal building after he tried (politely) to question an FCC commissioner. Montana Republican Greg Gianforte won a seat in the House of Representatives last week, one day after he was charged with assaulting a reporter who had pressed Gianforte for his take on the House health care bill. And over the long weekend, although it could be a coincidence, someone fired a gun of some sort at the offices of the Lexington Herald-Leader, a paper singled out days earlier by Kentucky Gov. Matt Bevin, who likened journalists to "cicadas" who "don't actually seem to care about Kentucky."

Where is all of this headed? It's hard to know for sure, but as a lawyer (and former newspaper reporter) who has spent years defending press freedoms in America, I can say with some confidence that the First Amendment will soon be tested in ways we haven't seen before. Let's look at three key areas that First Amendment watchdogs are monitoring with trepidation.

Abusive Subpoenas

The First Amendment offers limited protections when a prosecutor or a civil litigant subpoenas a journalist in the hope of obtaining confidential notes and sources. In the 1972 case of Branzburg v. Hayes, a deeply divided Supreme Court ruled that the Constitution does not shield reporters from the obligation of complying with a grand jury subpoena. But the decision left room for the protection of journalists who refuse to burn a source in other contexts—in civil cases, for instance, or in criminal cases that don't involve a grand jury. Some lower courts have ruled that the First Amendment indeed provides such protections.

The Constitution, of course, is merely a baseline for civil liberties. Recognizing the gap left by the Branzburg ruling, a majority of the states have enacted shield laws that give journalists protections that Branzburg held were not granted by the Constitution. Yet Congress, despite repeated efforts, has refused to pass such a law. This gives litigants in federal court, including prosecutors, significant leverage to force journalists into compliance. (In 2005, Judith Miller, then of the New York Times, spent 85 days in jail for refusing to reveal her secret source to a federal grand jury investigating the outing of Valerie Plame as a CIA agent. The source, Miller eventually admitted, was Vice President Dick Cheney's chief of staff, I. Lewis "Scooter" Libby.)

Trump will almost certainly take advantage of his leverage. He and his innermost circle have already demonstrated that they either fail to understand or fail to respect (or both) America's long-standing tradition of restraint when it comes to a free press. During the campaign, Trump tweeted that Americans who burn the flag—a free-speech act explicitly protected by the Supreme Court—should be locked up or stripped of citizenship "perhaps." In December, after the New York Times published a portion of Trump's tax returns, former Trump campaign manager Corey Lewandowski declared that executive editor Dean Baquet "should be in jail."

Trump took over the reins from an executive branch that was arguably harder on the press than any administration in recent history. President Barack Obama oversaw more prosecutions of leakers under the vaguely worded Espionage Act of 1917 than all other presidents combined, and he was more aggressive than most in wrenching confidential information from journalists.

Over the course of two months in 2012, Obama's Justice Department secretly subpoenaed and seized phone records from more than 100 Associated Press reporters, potentially in violation of the department's own policies. Thanks to the rampant overclassification of government documents, Obama's pursuit of whistleblowers meant that even relatively mundane disclosures could have serious, even criminal, consequences for the leaker. Under Obama, McClatchy noted in 2013, "leaks to media are equated with espionage."

One can only assume Trump will up the ante. His administration's calls to find and prosecute leakers grow more strident by the day. He and his surrogates in Congress have repeatedly tried to divert public discussion away from White House-Russia connections and in the direction of the leaks that brought those connections to light. It stands to reason that Trump's Justice Department will try to obtain the sources, notes, and communication records of journalists on the receiving end of the leaks.

This could already be happening without our knowledge, and that would be a dangerous thing. Under current guidelines, the Justice Department is generally barred from deploying secret subpoenas for journalists' records—subpoenas whose existence is not revealed to those whose records are sought. But there are exceptions: The attorney general or another "senior official" may approve no-notice subpoenas when alerting the subject would "pose a clear and substantial threat to the integrity of the investigation." 

The guidelines are not legally binding, in any case, so there may be little to prevent Jeff Sessions' Justice Department from ignoring them or scrapping them entirely. Team Trump has already jettisoned the policies of its predecessors in other departments, and it's pretty clear how Trump feels about the press. 

The use of secret subpoenas against journalists is deeply problematic in a democracy. Their targets lack the knowledge to consult with a lawyer or to contest the subpoena in court. The public, also in the dark, is unable to pressure government officials to prevent them from subjecting reporters to what could be abusive fishing expeditions.

As president, Trump sets the tone for executives, lawmakers, and prosecutors at all levels. We have already seen a "Trump effect" in the abusive treatment of a reporter in the halls of the Federal Communications Commission, the arrest of the reporter in West Virginia, and the attack by Congressman-elect Gianforte.

We are also seeing the Trump effect in state legislatures, where the president's rants may have contributed to a spate of legislative proposals deeply hostile to free speech, including bills that would essentially authorize police brutality or "unintentional" civilian violence against protesters and make some forms of lawful protest a felony. A leader who normalizes the use of overly broad or abusive subpoenas against journalists could cause damage all across the land.
 

Espionage Laws

A second area of concern is the Espionage Act of 1917, a law that has been used for nearly a century to prosecute leakers of classified information—from Daniel Ellsburg and Julius and Ethel Rosenberg to Edward Snowden and Chelsea Manning. The government hasn't ever tried to use it to prosecute the journalists or media organizations that publish the offending leaks—possibly because it was seen as a bad move in a nation that enshrines press protections in its founding document. But free-speech advocates have long been wary of the possibility.

The successful prosecution of a journalist under the Espionage Act seems unlikely—a long string of Supreme Court decisions supports the notion that reporters and news outlets are immune from civil or criminal liability when they publish information of legitimate public interest that was obtained unlawfully by an outside source. "A stranger's illegal conduct," the court's majority opined in the 2001 Bartnicki v. Vopper case, "does not suffice to remove the First Amendment shield about a matter of public concern." But like any appellate decision, the Bartnicki ruling is based on a specific set of facts. So there are no guarantees here.
 

Litigious Billionaires

Very, very rich people with grievances against the press are as old as the press itself. But the number of megawealthy Americans has exploded in recent years, as has the number of small, nonprofit, or independent media outlets—many of which lack ready access to legal counsel. In short, billionaires who wish to exact vengeance for unflattering coverage enjoy a target-rich environment.

Trump did not create this environment. But from his presidential bully pulpit, he has pushed a narrative that can only fuel the fire. The Trumpian worldview holds that the media deserves to be put in its place; the press is venal, dishonest, and "fake" most of the time. It should be more subject to legal liability so that, in his words, "we can sue them and win lots of money."

Win or lose, a billionaire with an ax to grind and a fleet of expensive lawyers can cause enormous damage to a media outlet, particularly one with limited means (which, these days, is most media outlets). Some lawsuits by deep-pocketed plaintiffs, like the one filed against Mother Jones by Idaho billionaire Frank VanderSloot (a case I helped defend), are ultimately dismissed by the courts. Others, such as Hulk Hogan's lawsuit against Gawker Media—funded by Silicon Valley billionaire and Trump adviser Peter Thiel—succeed and put the media outlet out of business. Another recent suit, filed by Las Vegas casino magnate Sheldon Adelson against a Wall Street Journal reporter, ultimately settled.

Regardless of the outcome of such cases, the message to the media is clear: Don't offend people who have vast resources. Even a frivolous lawsuit can stifle free speech by hitting publishers where it hurts (the wallet) and subjecting them to legal harassment. This is especially so in the 22 states that lack anti-SLAPP statutes—laws that facilitate the rapid dismissal of libel claims without merit.

The VanderSloot lawsuit is instructive. Although a court in Idaho ultimately threw out all the billionaire's claims against Mother Jones, the process took almost two years. During that time, VanderSloot and Mother Jones engaged in a grueling regimen of coast-to-coast depositions and extensive and costly discovery and legal motions. Along the way, VanderSloot sued a former small-town newspaper reporter and subjected him to 10 hours of depositions, which resulted in the reporter breaking down in tears while VanderSloot, who had flown to Portland for the occasion, looked on. VanderSloot also deposed the journalist's ex-boyfriend and threatened to sue him until he agreed to recant statements he had made online.

Victory did not come cheap for Mother Jones: The final tab was about $2.5 million, only part of which was covered by insurance. And because Idaho lacks an anti-SLAPP statute, none of the magazine's legal costs could be recovered from VanderSloot.

Despite his threats, Trump has not brought any libel lawsuits as president—but his wife has. First lady Melania Trump sued the Daily Mail in February over a story she said portrayed her falsely "as a prostitute." The Daily Mail retracted the offending article with a statement explaining (a) that the paper did not "intend to state or suggest that Mrs. Trump ever worked as an 'escort' or in the sex business," (b) that the article "stated that there was no support for the allegations," and (c) that "the point of the article was that these allegations could impact the U.S. presidential election even if they are untrue."

So which billionaire will be next to sue, and who will the target be? The question looms over America's media organizations like a dark cloud. That is an unacceptable situation in a nation whose Constitution guarantees "robust, uninhibited and wide-open" discussion of public issues, as Supreme Court Justice William Brennan wrote in the landmark First Amendment case New York Times v. Sullivan.

Trump has yet to act on his most outrageous rhetorical attacks on the media and free speech, but it's likely only a matter of time. When he does act, it will be important to remember that constitutional protections are quite broad, and that there's only so much any White House can do to the press without the backing of Congress or the courts. Such cooperation is hardly out of the question, though. Stranger things have already happened in this strangest of political times.

The author's views do not necessarily reflect those of the First Amendment Coalition's board of directors.

The concept is straight from the Soviet playbook: Plant false information and use it to influence the attitudes of another country’s people and government. This “active measures” technique from the Cold War era appears to have been resurrected with alarming success by the Kremlin in its attack on the 2016 presidential election—and has been echoed in tactics used by President Donald Trump and his associates, according to Clint Watts, a senior fellow at the Foreign Policy Research Institute.

“Part of the reason active measures have worked in this US election is because the commander in chief has used Russian active measures at times against his opponents,” Watts, a former FBI agent, recently testified to the Senate Intelligence Committee.

Key to this equation have been RT and Sputnik international, two Russian state-sponsored news outlets. Both reach only relatively small audiences in the US (RT is estimated to reach about 8 million people via cable television), but their impact has been magnified greatly online, with their stories reposted on what Watts calls “gray” conspiracy sites like Breitbart News and InfoWars. Twitter bots and other social media accounts further amplify the stories. And in several cases, Trump or his associates have directly cited phony Russian propaganda in a speech or interview. Here are some examples:

A false report of a terrorist attack at a NATO base in Turkey: Last July, RT and Sputnik each reported on a fire at the Incirlik base, framing it as potential sabotage. Pro-Russian and pro-Trump Twitter accounts spread and magnified the false reports, but mainstream news organizations didn’t pick up the report because it wasn’t true, as Watts explained in a piece for the Daily Beast. Yet, in mid August, Paul Manafort—Trump’s campaign chairman at the time—escalated the story to a terrorist attack, complaining on CNN that US media outlets were not adequately covering it. Politifact debunked Manafort’s claims, noting that Turkish authorities had reported small, peaceful demonstrations outside the base, but no actual assault on the base.

The case of the phony Benghazi email: On October 10, Wikileaks released a batch of emails hacked from campaign chairman John Podesta’s email account. About 5 pm ET that day, Sputnik News published a story about leaked Clinton campaign emails with the headline “Hillary confidante: Benghazi was ‘preventable’; State Department negligent.” Roughly an hour later, Trump told supporters at a rally in Pennsylvania that Clinton ally Sidney Blumenthal had called the Benghazi attack “almost certainly preventable.” “This just came out a little while ago,” Trump said. Those words weren’t actually Blumenthal’s and Sputnik later deleted the story – but by then the headline had spread far and wide.

False claims of pervasive voter fraud: RT has been attempting to delegitimize the American electoral process since 2012 by calling the U.S. voting system fraudulent, according to the declassified version of the report the Director of National Intelligence released this past January. In his Senate testimony, Watts called this the “number one theme" pushed by Russian outlets. In October 2016, a Kremlin-controlled think tank circulated a strategy document that said Russia should end its pro-Trump propaganda “and instead intensify its messaging about voter fraud to undermine the U.S. electoral system’s legitimacy and damage Clinton’s reputation in an effort to undermine her presidency,” according to a Reuters investigation. 

That same month, Trump pushed hard on the theme that the election was rigged; on Oct. 17 Trump tweeted “Of course there is large scale voter fraud happening on and before election day.” The sources his campaign pointed to were all debunked by Politifact, which noted that Trump had also tweeted in 2012 about dead voters delivering Obama’s win.

The Swedish attack that wasn’t: Trump’s strategy of running with false information didn’t stop when he won the election – and hasn’t been limited to Russian-owned media properties: He’s also used Fox News reports in a similar way. In February, Trump appeared to imply at a Florida rally that a terrorist attack had occurred the previous night in Sweden. Sweden itself had no idea what he meant and the Swedish Embassy reached out to ask for clarification. Twitter users, including many Swedes, ridiculed Trump’s statement, with references ranging from IKEA to the Swedish Chef character from the “Muppets.” Trump later said that he was referring to a Fox News story on violence allegedly perpetrated by refugees. That report, which aired the night before Trump’s rally, did not mention a specific terror-related attack; it focused on reports that rape and gun violence had increased since Sweden began taking in a record number of refugees in 2015.

Wiretapping claims pushed by a Fox News personality: In March, even though Trump's claim about Obama wiretapping Trump Tower had been directly debunked by top US intelligence officials, the president seized on a baseless claim by Fox News analyst Andrew Napolitano that British spies had wiretapped Trump at former President Obama’s request. Fox News later disavowed Napolitano’s statement. Trump continued to repeat his conviction that he’d been wiretapped, even though American and British intelligence officials insist there is no basis for the claims.

The murder of DNC staffer Seth Rich: Trump allies recently pushed another story that started as a conspiracy theory online and was fueled by Russian news outlets. Fox’s Sean Hannity aired several segments focusing on the unsubstantiated claim that Rich was behind the Clinton campaign email leaks and then murdered for his actions, even though police have said he was likely killed in a robbery attempt. When the claims were thoroughly debunked, Fox retracted the story from its website – but not before it had been spread by Trump ally and former House Speaker Newt Gingrich. Even after Fox pulled the story, Gingrich told the Washington Post, “I think it is worth looking at.”

In his Senate testimony, Watts noted that Trump is vulnerable to further manipulation by the Russians: He warned that Russian-linked Twitter accounts are actively trying to engage the president by sending him conspiracy theories. “Until we get a firm basis on fact and fiction in our own country, get some agreement about the facts,” Watts said, “we’re going to have a big problem.”

Authorities have confirmed they are looking into a new video related to the death of Ahmaud Arbery, the Georgia man who was allegedly shot by a father and son in February. The video, obtained by The Atlanta Journal-Constitution, shows someone who appears to be Arbery on a home surveillance camera down the block from a construction site just minutes before the 25-year-old was shot on the afternoon of Feb. 23. Two police cars can be seen in the video minutes later traveling down the street in the direction Arbery ran and was later shot.

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Fresh from their panel at Indie Week’s Indie101 Music & Tech Conference, Mike sits down with Erin Kinghorn, the co-founder of playlist-pitching company Digital Promotions Group (DPG) Canada and founder of artist development company eEK! Productions.

Together, Mike and Erin chat all about streaming playlists and how songs find success on them. Erin explains how the playlist ecosystems works, the data and analytics that matter, the differences between the various streaming platforms, how a playlist-pitching campaign works, how to measure success in this quickly-evolving sector, and a bunch more.

http://dpgworldwide.com http://canadianmusician.com

This week, we bring you a fun and interesting chat with Floyd Kane, the creator and writer of the CBC series Diggstown. Floyd and Mike chat about the use of music as a storytelling and emotional device in TV, how and when music comes into the TV writing process, how songs are chosen for the show, and some of the great independent Canadian artists whose music is featured in Diggstown.

http://canadianmusician.com

This episode is sponsored by Bandzoogle. Try it free for 30 days and use the promo code “CMPOD” to get 15% off your first year of any subscription. https://bandzoogle.com/?pc=cmpod

This week, we’re sharing the full conversation Mike had with musician and artist advocate Miranda Mulholland as part of his research for a new article on how the COVID-19 crisis is impacting the music business and what lies ahead. Miranda - who, in addition to being an artist advocate that works closely with all levels of government, is also one-half of the duo Harrow Fair – offers a revealing perspective on how artists are being professionally and personally impacted by the loss of live shows, gives a fascinating behind-the-scenes account of how government has dealt with the crisis, and discusses her own experience of releasing an album in the midst of all this.

Read Mike's article, "Behind the Scenes as the Canadian Music Industry Copes with an Unprecedented Crisis," at: https://indepth.canadianmusician.com/its-impossible-to-imagine-behind-the-scenes/

http://canadianmusician.com

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