New Administration Means Changes on Press Issues
Published Feb. 2021
Any change in presidential administrations, especially when it involves a change of party affiliation, means changes in a lot of federal government personnel, stances on issues and policy changes. This is especially true as the Biden Administration takes over from Donald Trump. And many of the changes will likely be in the new administration’s policies and attitudes regarding the press.
The Biden White House has already re-instituted the daily briefing by the White House press secretary, a ritual that dates back to the Herbert Hoover administration in the 1920s that had been all but abandoned during the Trump presidency. While there’s debate on the value of the briefings, they do offer an opportunity for the press to get answers—or, perhaps, evasions—to questions on various issues.
But there are also numerous policy issues that affect the news media—and newspapers in particular—on which the Biden Administration is likely to have different approaches than the Trump presidency did.
Access to Government Information: The Trump administration took extraordinary, unprecedented measures to limit access to information, such as requiring campaign and administration employees to sign legally dubious non-disclosure agreements, and unsuccessfully going to court to enforce them by trying to stop publication of books by ex-administration officials. The President and others in his administration also routinely destroyed documents despite legal mandates that they be preserved. The Trump administration also stopped releasing White House visitor logs, a practice that the Biden White House has already revived.
The Trump Administration denied a record number of requests under the Freedom of Information Act. In a November 2019 speech Attorney General William P. Barr directly criticized the Act, saying that “[the process of government] cannot function properly if it is public, nor is it productive to have our government devoting enormous resources to squabbling about what becomes public and when, rather than doing the work of the people.” This attitude led to policies allowing political appointees to vet agencies’ FOIA responses.
While President Biden has not issued a formal policy on access to government information as quickly as President Obama did (even if his administration failed to live up to it), he has issued a memo pledging “a recommitment to the highest standards of transparency.” And his nominee for attorney general, Merrick Garland, has a judicial record of supporting public access to government information. The Society of Professional Journalists has urged the Biden administration to rescind policies restricting government employees from speaking to the press.
Internet and Social Media: It appears likely that Biden will repeal or at least substantially alter President Trump’s executive order aimed at preventing social media’s alleged censorship of conservative opinion. And the Federal Communications Commission is likely to reinstitute Obama-era “net neutrality” requirements that bar internet access providers from favoring some online content—usually content in which the providers have some economic interest—over others. Without net neutrality rules in place, the accessibility of individual newspapers’ websites and cellphone apps could depend on the specific circumstances in their markets, and their relationships with local internet access providers. Chain-owned newspapers may, for example, be able to afford prioritization from ISPs. And dominant newspapers may have enough customer support so that customers will object if an ISP blocked or limited access, while smaller and independent newspapers may not.
But the big question is what will happen to “section 230,” the federal law that gives social media platforms immunity from most liability for content posted by users. There is bipartisan support for changing the law, albeit for different reasons and in different ways. Perhaps seeing it as inevitable, social media companies such as Facebook have publicly called for change as well.
Anti-trust actions filed against the large social media companies by the Federal Trade Commission during the Trump years, which echo some claims made by traditional media companies, are likely to continue. The social media giants, for their part, are trying to blunt this litigation in several ways, including suggesting—and in the case of News Corp., agreeing on Feb. 17—that they can pay traditional media companies for the display of their news items on social media platforms. Another approach is a bill in Congress that would relax anti-trust laws to allow news media to negotiate a collective agreement for such payments.
Media Ownership: The FCC’s efforts to loosen limitations on media ownership have been tied up in court, and on January 19 the U.S. Supreme Court heard argument on the repeal of the rule barring common ownership of newspapers and television stations in the same market. That rule was created for a different era, when newspapers and broadcast media were dominant and did not face competition from online organizations. Allowing them to unite could end up strengthening them both.
Libel: Through his campaign and presidency, Trump would regularly bemoan American libel law, which he claimed allowed the media to “write purposefully negative and horrible and false articles” without real consequence, and said that these laws should be changed. But the president has little power over such laws, which are established by the states and the courts, and nothing actually changed. Supreme Court Justice Clarence Thomas did in 2019 call for a rethinking of the New York Times v. Sullivan precedent, but doing so would require an appropriate case coming to the Court and a majority of justices agreeing to change the law. Still, many media lawyers worry about what may happen if the “right” case were to make it to the Supreme Court.
Online Privacy: As California’s sweeping new privacy law and regulations go into effect, and other states enact their own laws, there is growing sentiment that Congress should act to establish a national standard of privacy protections for the collection, storage and sale of personal data. These laws could have profound effects on how your website and mobile apps work, and the notices you must give to users.
But perhaps the most fundamental change will likely be in the new administration’s attitude towards the press. Trump, of course, reveled in labelling the press as “the enemy of the people,” which had domestic and international consequences. So far, the Biden administration has treated the press with wary respect, and the honeymoon between the new administration and the press will eventually end. But the end of Trump administration will end an enmity towards the press that had implications way beyond the White House grounds. The question is whether the press and the White House can reestablish the healthy tension between their roles that recognizes the importance of the press in democratic governance.
Eric P. Robinson focuses on media and internet law as assistant professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.