The president-elect is employing legal strategies that elected officials on both sides of the aisle and corporations of many stripes have used for decades to avoid First Amendment arguments when combating negative press. Engaging in consumer fraud claims is one of those strategies.

Chilling effect of lawsuits

Last week in Trump’s latest lawsuit, he alleged that The Des Moines Register and renowned pollster Ann Selzer violated Iowa’s consumer fraud act when publishing a poll that showed Democratic candidate Kamala Harris leading in the state days before the election.

Harris’ lead did not come to pass as ballots were counted in Iowa and Trump won the state for the third time. That did not satisfy the former and future president as he is suing Selzer, the newspaper and its parent company Gannett, claiming they violated the Iowa Consumer Fraud Act.

Trump argues that the poll interfered with the election.

Threats and litigation set a hostile landscape for major news organizations, regional newspapers and independent journalists alike, Dr. Heesoo Jang, assistant professor of Media Law and Ethics at the University of Massachusetts-Amherst Department of Journalism, told UPI.

Those threats include revoking broadcast licenses and jailing reporters and critics. His nominee for FBI director, Kash Patel, has repeatedly trumpeted his desire to use the law against those Trump deems his enemies.

“This is not a safe environment to be a journalist,” Jang said. “There’s definitely a chilling effect.”

Source confidentiality

This chilling effect is something that press freedom advocates are encouraging Congress to take action on. Organizations like the Freedom of the Press Foundation and the Society of Professional Journalists have put their support behind the PRESS Act, a bill that would prohibit the federal government from surveilling journalists or pressuring them into giving up their sources.

Sources may request anonymity when speaking to journalists for reasons of safety or maintaining their job status. An anonymous source referred to as “Deep Throat” delivered critical information to The Washington Post reporters Carl Bernstein and Bob Woodward when they uncovered the Watergate scandal.

In January, the PRESS Act — Protect Reporters from Exploitative State Spying — passed the U.S. House unanimously.

“It was really exciting to see this unanimous, bipartisan bill that was passed by the House. In this political landscape we don’t see that happen that often,” Jang said.

The bipartisan support for the bill has fallen apart since Trump directed Republicans to “KILL THIS BILL!” in a social media post on Nov. 20. Sen. Tom Cotton, R-Ark., did his part to do just that, blocking it days later.

“It is the biggest giveaway to the liberal press in American history,” Cotton said on the Senate floor.

Cotton argued that the bill would make journalists a protected class, granting them the right to possess sensitive classified information in an “unsecured and unmonitored environment.” He then referenced the post by Trump.

Protecting the free press

Reporting on the government, including subjects government officials would prefer to remain secret, is the most significant role the press plays in a democracy. It is meant to hold government officials accountable, regardless of which political party occupies the White House or holds majorities in Congress.

Forty-nine states and the District of Columbia have at least some level of protection for reporters, protecting them from being forced to testify about the information and sources they have maintained for the purpose of gathering and delivering news. Wyoming is the only state with no version of reporter protections.

Establishing those protections at the federal level would create consistency and assurance for reporters and sources.

“A source goes to a journalist and says, ‘I want to give you some information that the public needs to know. Are you going to be able to protect me?’ They want to hear a straightforward ‘Yes,'” Seth Stern, director of advocacy for the Freedom of the Press Foundation, told UPI. “They don’t want to hear that it depends on what state they are in.”

Stern continues to press for Congress to pass the PRESS Act.

“This is a bill that is going to protect journalist source confidentiality and the public’s right to know whether reporters are reporting news Trump likes or doesn’t like,” Stern told UPI. “There’s no way to quantify how much reporting we’ve missed out on because of a lack of protections.”

While there is newfound opposition from the Republican side of the aisle, Republican and Democratic administrations have subpoenaed journalists and pressured them to give up sources, Stern said.

‘Missed opportunities’

President Joe Biden had the opportunity to undo one of Trump’s more direct attacks on the free press, according to Stern. In 2019, Trump’s Department of Justice indicted Wikileaks founder Julian Assange under the 1917 Espionage Act. His prosecution continued into Biden’s term, ending in a guilty plea.

The Espionage Act was passed by Congress to curb dissent during World War I. It was amended by the Sedition Act a year later, giving the government broader censorship authority, including the authority to intercept mail that contained critical comments about the government or its military efforts.

Assange was charged for allegedly speaking with a U.S. intelligence source, obtaining documents related to national security and publishing them in 2010.

President Barack Obama‘s Justice Department determined that prosecuting Assange would set a dangerous precedent for press freedom. If Assange were indicted, the freedom of the press guaranteed by the First Amendment would be weakened and future administrations could wield the law to dilute that freedom further.

“Journalists and professors warned the Biden administration from going down that path. The calls were ignored,” Stern said.

“Assange had to plead guilty to gain his freedom, and in the eyes of prosecutors and judges a plea deal is a conviction. The successful prosecution of a publisher publishing government secrets can be weaponized against journalists and provide Trump or whomever to engage in some level of whataboutism. That was something the Biden administration handed to Trump on a silver platter.”

Squelching the freedom of the press is a foundational tactic central to totalitarianism, authoritarianism or fascism.

“If we descend into fascism, a lot of people are going to be kicking themselves for the missed opportunities to solidify the protections the Constitution is supposed to provide,” Stern added.

Democratic lawmakers Rep. Jamie Raskin, D-Md., Rep. Kevin Kiley, D-Calif., and Sen. Ron Wyden, D-Ore., have led the charge on Capitol Hill to pass the PRESS Act. Earlier this month they introduced another bill meant to protect the press from strategic lawsuits against public participation or SLAPP lawsuits.

“The Free Speech Protection Act will stop trial lawyers from abusing our justice system, clogging our courts, and silencing those they deem to have incorrect politics,” Kiley said in a statement. “Under this legislation, powerful interests will no longer be able to launch frivolous lawsuits intended to bankrupt everyday Americans. While many states have already instituted these protections, we need federal protections to guard all Americans’ First Amendment rights.”

‘It’s about the message’

The goal of SLAPP lawsuits, according to Jang, is not necessarily to win. Instead they sap newsrooms of resources, shift reporters’ focus from news coverage to responding to legal matters. Democrats and Republicans have both engaged in these types of lawsuits.

“It’s more about the message that these people in power send to society and newsrooms and the public about undermining the significance of the press as being a democratic,” she said.

When a large media organization like ABC settles a lawsuit early in the proceedings — a lawsuit that legal analysts believe it could have won — it invites more lawfare against the press, according to John Diamond, Raymond L. Sullivan Professor of Law at the University of California College of Law – San Francisco.

ABC and its parent company The Walt Disney Company are a well-resourced, multibillion-dollar organization with the financial means to absorb a $15 million settlement, should it choose to. However, doing so creates a greater threat for smaller news organizations like local newspapers and independent reporters, Diamond said.

“It is of concern because the big publishers are theoretically the ones that hold the fort and subsidize the legal threats,” Diamond told UPI. “The bigger companies are the ones that are supposed to hold firm. There’s a lot of power the government can exercise. Prosecutors have a lot of discretion. Even if it doesn’t result in liability or a conviction, it can create havoc. It has a chilling effect.”

As the threats to press freedom mount, Diamond, Jang and Caroline Hendrie, executive director of the Society of Professional Journalists, told UPI the time has come to be alarmed about a shift away from democracy.

“It’s very important and incumbent upon all Americans who care about press freedom and freedom of speech to sound the alarm when it looks like those critically important First Amendment rights are under threat,” Hendrie said. “I don’t think that’s alarmist. It’s realistic and it’s vigilant.”

“Sadly, we have already reached ‘red-flag alarming,'” Diamond said. “One could hope that these are all threats and the glory of winning will mute these efforts or better minds may prevail. There were more guardrails in the first Trump administration than the second will have because the people he’s appointed now have more of the inclinations that Trump does.”

“Before, we’ve thought the erosion of the norms attached to democracy are always abrupt and violent. We are relatively better at recognizing red flags when it entails very violent actions toward democratic institutions,” Jang said. “We need a lot of practice in noticing the red flags that happen slowly, gradually, sometimes totally within legal boundaries, such as defamation lawsuits. What we have to recognize is these totally legal things oftentimes are used to erode democracy.”