MARY-ROSE PAPANDREA

When Donald Trump returned to the Presidency in 2025, the heated rhetoric attacking the press, universities, and lawyers that dominated his first term in office turned to action. These aggressive attacks on our nation’s elite institutions have been remarkably successful. This Essay asks why. This Essay first offers some historical context for Trump’s attacks and outlines their general parameters. Although the current Trump administration attacks on the press, universities, and law firms are more brazen and more aggressive than any we have ever seen before, our own nation’s history laid the groundwork for them. In addition, in recent decades the public’s trust in universities, the press, and elites in general has dramatically decreased, blunting political outrage. The second Part of this Essay identifies five key factors leading to the remarkable success of the Trump attacks: (1) these institutions need money and are run like businesses; (2) legal challenges to the Trump administration’s actions face significant procedural obstacles and substantive uncertainty; (3) the Administration’s actions have a broad chilling effect on others; (4) the institutions under attack have a weak commitment to the freedom of speech, the freedom of the press, and academic freedom; and (5) the institutions are fractured and have failed to engage in effective collective action. In light of these weaknesses, saving our democratic institutions from the Trump administration’s attacks will be no easy feat.

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AMY KRISTIN SANDERS

Free press advocates have lamented the recent uptick in the number of lawsuits news organizations from the Wall Street Journal to CNN are facing for their critical coverage of government and political leaders. But history reminds us that these attacks are not new despite the First Amendment’s purported protection of freedom of expression. Even before the Constitution was ratified, printer John Peter Zenger faced seditious libel charges for criticism of Britain’s colonial leaders. During the Civil Rights Movement, segregationists turned to libel laws to discourage news coverage of their violent efforts to avoid integration. Not long after Watergate brought down President Nixon, conservative political groups launched high-profile attempts to bring the watchdog press to heel. This Essay analyzes these key lawsuits and the historical moment in which they arose in an effort to glean key litigation and advocacy strategies to help news organizations rebut current attempts to weaponize libel law and erode press freedom.

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RONNELL ANDERSEN JONES & SONJA R. WEST

Backward-looking, history-and-tradition analysis is gaining greater prominence at the U.S. Supreme Court. While the Court has not yet explicitly applied its history-and-tradition framework to press freedom questions, the methodology’s dominance across other areas, coupled with some urgent concerns about the scope of newsgatherer protections and some Justices’ interest in reconsidering long-established precedent, suggest that this application could be imminent. In anticipation of that moment, we set out to empirically map the Court’s engagement with the history and tradition of press freedom in its rhetoric over time. Our goals were to explore, both quantitatively and qualitatively, how the Court’s Justices have discussed historical and traditional views on press freedom and whether the intensified history-and-tradition analysis that now dominates the Roberts Court’s constitutional decisions is mirrored in its discussions of the press. What we found was deeply counterintuitive. The trend data show that while the Court once routinely commented on the Founders’ support for the press and the nation’s long history of press freedom, these references are now waning. That is, even as history-and-tradition analysis has proliferated in the Roberts Court’s recent decisions, references to these concepts in mentions of the press have plummeted. This paradox suggests that the Roberts Court may be discarding its longstanding positive historical narrative of press freedom just as it is elevating history and tradition as tools of constitutional interpretation.

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DAVID SCHULZ & BRIAN O’NEILL

The Espionage Act, 18 U.S.C. § 793(d)–(e), makes it a crime for anyone without prior authorization to disclose “information relating to the national defense” if there is “reason to believe” that disclosure could harm the United States or aid a foreign government. This loosely worded prohibition can be read to subject government whistleblowers to imprisonment for disclosing “information relating to the national defense” to a journalist without authorization; it can also be read to jail journalists for reporting such information. For more than fifty years, the Act was used only to prosecute traitors and spies as Congress intended, but after 9/11, its broad language was repeatedly invoked to prosecute government employees who leaked information to the press. No appellate court has yet addressed the First Amendment’s limits on the government’s ability to punish the public disclosure of accurate, newsworthy information the Executive branch had classified to protect
national security.

Answering this critical question has become an issue of immediate concern with the return of Donald Trump to the White House. The first-ever use of the Espionage Act to indict the publisher of a classified leak (and not just the leaker) was brought during Trump’s first term in office, when Espionage Act charges were filed against WikiLeaks founder Julian Assange. But that case was resolved with a plea during the Biden administration, so the Act’s constitutional limits remain undetermined even as the new Trump administration makes chilling the press a governing priority and regularly invokes national security as justification for presidential action.

Identifying the First Amendment limits to the Espionage Act is complicated because it will require a court to resolve a clash of two fundamental values—protecting freedom of expression and protecting national security. This Essay outlines an approach to resolving this clash, drawn from procedures and standards developed by courts to adjudicate conflicts between freedom of expression and other fundamental values—personal reputation and privacy. It first reviews the scope of the Espionage Act, the absence of judicial precedent defining the First Amendment’s limit on the Act’s reach, and the impact of this ambiguity on journalists and their sources. It then considers standards and procedures developed to conform the common law of defamation and privacy to the First Amendment’s commands that should inform how the First Amendment limits Espionage Act liability when information of public concern is leaked to the press. These include: 1) the muscular gate-keeping role given to judges to screen out meritless claims; 2) requiring those seeking to punish a speaker to prove either a culpable state of mind or actual, speech-caused injury; 3) applying standards intended to balance the competing interests predictably and provide clarity to guide behavior; and 4) requiring courts to independently ensure that record evidence convincingly supports any sanction imposed on speech.

This Essay contends that identifying the constitutional constraints needed to prevent the Espionage Act from becoming a retaliatory tool to punish disclosures of government misconduct and abuse will require procedural solutions as much as substantive ones. The answer need not depend on courts inventing a new doctrine. It can come from familiar First Amendment practice developed in defamation and privacy cases and from the judiciary’s established role in policing secrecy claims in other contexts.

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ERIN C. CARROLL

As American institutions wither and die, those who believe in their importance must reflect and rebuild. One institution worthy of sustained attention is the free press. Divorced from government by design, the press can benefit from efforts to reinvigorate and reinvent it in ways that institutions more directly under the federal government’s thumb cannot. To best undertake these efforts, we need a richer understanding of why a free press is vital. Articulating the values that underlie the need for this institution is necessary not only to build the most robust free press, but also to best exercise our freedoms as Americans.

The conventional wisdom about why the United States needs a free press has remained stagnant for a quarter-millennium: the press is a bulwark of democracy. Perhaps because democracy is such a fundamental national value, press advocates have failed to look beyond it. We have failed to see that democracy does not exist in isolation. Rather, it operates in concert with other values, and its strength rises and falls along with them. The press can be a bulwark of an array of democracy-aligned values. A key one of these is human dignity.

The press promotes human dignity foremost by serving as a generator and distributor of information. But more specifically, it advances dignity through editorial practices that prioritize fairness, accountability, and recognition of fellow humans. It also promotes dignity by producing news about those who might otherwise be overlooked.

In trying to create a formidable free press, it is important to consider precisely how the press advances dignity and how it can do so better. In expanding our understanding of the press’s benefits (actual and potential), we better ensure a future in which the press—a key creator of community narratives, social meaning, and publics—upholds collective values.

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LILI LEVI

Media ownership is now both directly and indirectly at the center of the Trump Administration’s press-control strategy. With the deployment of censorship efforts and lawsuits aimed at press owners critical of the President, the regulatory activities of a Trump-aligned Federal Communications Commission (FCC), the grant of benefits to politically partisan, pro-Trump media owners, the defunding of public media, the adoption of multiple hurdles to independent newsgathering, and the involvement of the President in the joint venture to spin off an American TikTok, the Trump Administration has been systematically engaging in a multi-pronged scheme of press control by proxy, focused on ownership.

Today’s media ecosystem is complex, with news outlets reflecting a range of ownership patterns with varying characteristics, legal rules, and owner incentives. In theory, such a mix could generate a range of owner responses to government pressure. However, if the Administration strategically continues to tailor governmental sticks and carrots to the characteristics and vulnerabilities of the various forms of ownership—and particularly while permitting increased media consolidation—it is realistic to expect more capitulation than resistance from media owners in response.

Although there is no way to insulate the press completely from the threat of ownership-focused control, this Essay makes five recommendations to reduce the press function’s exposure to proxy censorship: (1) exacting scrutiny of proposed media mergers and acquisitions from the vantage point of their impact on concentration in the market for news production; (2) constraints on FCC Chairman Carr’s sweeping and politicized expansions of Commission intrusions into content; (3) rejection of proposed expansions of corporate boards’ fiduciary duties of oversight to news units; (4) a skeptical review of the statutory compliance of the new TikTok USDS Joint Venture LLC; and (5) development of funding models that would materially promote the work of journalistically-trained independent “evidence-based creators.”

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BLAKE E. REID

FCC Chairman Brendan Carr’s public campaign of unlawful threats against television broadcasters, culminating in the high-profile preemption and later return to air of late-night host Jimmy Kimmel, provides an important natural experiment for the law of jawboning. The Kimmel-Carr episode highlights the challenges of legal remedies against government officials over even the most flagrantly coercive, unlawful, and public jawbones. It also highlights the importance of intermediaries refusing to comply with unlawful demands—what this Essay calls jawbreaking.

Using the Kimmel-Carr episode as a case study, this Essay proposes moving beyond voluntary incentives for jawbreaking to impose a mandatory duty to jawbreak on speech intermediaries. The duty counteracts the risk of retaliation for intermediaries resisting unlawful threats with an equal or greater risk of future consequences for intermediaries knuckling under—such as the loss of a broadcast license. In turn, it proposes circumventing the political barriers that hamper most jawboning reforms by way of counterboning: bootstrapping the duty to jawbreak with warnings of future consequences under an extant statute such as the Communications Act. In doing so, it contemplates navigating the traps of jawboning law—including the jawboner’s (and the knuckler’s) dividend.

Finally, it considers the unexpected lessons of the Kimmel-Carr episode for debates over jawboning and Internet intermediaries. It highlights how the exceptional treatment of broadcasters under the Communications Act’s public interest standard and Internet intermediaries under Section 230 can leave both vulnerable to jawboning. And it considers what broadcast and Internet exceptionalism might have to teach each other about synthesizing jawbreaking.

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