“As someone who has always been a proud employee of this network, I am offended. And I don’t know if anything will ever repair my trust in this company, but just taking a stab at it, I’d say $16 million would help,” [Colbert] quipped, adding that the “technical name in legal circles” for the settlement is “a big, fat bribe.”
CBS has opted for potential profit over journalistic principles. In the process, it has betrayed the public trust and has likewise breached the courageous ethic of the likes of Edward R. Murrow.
Of course, it is not alone, as evidenced by the recent capitulations of ABC. And all of this happens while yet other lawsuits — e.g., Trump’s suit against Iowa pollster J. Ann Selzer and The Des Moines Register, as well as his recent action against The Wall Street Journal — hang like a Sword of Damocles over the rest of the media landscape.
How should citizens respond to concessions such as those of CBS and ABC?
The fear principle, and responses to it
To answer that question one must first ask: What drives such capitulations? The answer is well summed up by Scott Pelley (formerly of 60 Minutes): An “insidious fear is reaching through our schools, our businesses, our homes, and into our private thoughts — the fear to speak in America.”
The media’s fear of surrendering to Trump is prompted by at least four concerns:
Real or assumed financial consequences.
Real or assumed regulatory consequences.
Real or assumed threats by MAGA followers.
Transactional considerations — i.e., it is less costly to succumb than to fight.
Some of these fears are real, while others are speculative. By the same token, it is equally speculative (or even more so) that any settlement with Trump will once and for all actually settle the matter.
Such fears must be weighed against other considerations, such as the following six:
Bullies, like mob bosses, are never satisfied; they always return with more demands.
Any promises made by Trump and/or his administration could well prove to be illusory or outright duplicitous
The same fear that prompted one settlement will likely make reporters ever more hesitant to report anything likely to upset Trump — staffers at Paramount Global’s The Daily Show are worried they could be next.
Defending high principles over speculative profits can, in the long run, prove to be the more pragmatic alternative.
The loss of trusted journalists like Scott Pelley and Bill Owens.
Defending journalistic principles can rally needed media and public support.
Any excuse will serve a tyrant.
— Aesop
The recent cancellation of The Late Show hosted by Stephen Colbert (a critic of CBS’s settlement) also smacks of media capitulation — of the felt necessity to “clean house” to appease a vengeful President.
True to his strong-arm style, Trump recently posted this on Truth Social:
I absolutely love that Colbert got fired. His talent was even less than his ratings. I hear Jimmy Kimmel [another Trump critic] is next. Has even less talent than Colbert!
Think of it: Whatever deals Paramount Global strikes with Trump, does it really believe that thereafter CBS will be able to criticize the President without punitive consequence? Does it actually believe there will not be more baseless lawsuits if Trump is offended by their coverage? Does it honestly believe that if Trump is snubbed, he will not sic FCC Chairman Brendan Carr (his lapdog) on CBS?
How should the public respond?
The Paramount/CBS settlement “is an ominous blow to press freedom in our nation.”
“Paramount may have closed this case, but it opened the door to the idea that the government should be the media’s editor-in-chief. Trump has a long history of filing frivolous lawsuits to intimidate critics, and his targets have a long history of capitulating to avoid legal headaches. And here, he had the added tactic of using the FCC and its review of the multi-billion-dollar Paramount-Skydance merger to bring added pressure to bear.”
While networks like CBS and ABC are for-profit businesses, they are also entities charged with a certain public trust. This is so because a hardy stream of complete, competing, and credible information is vital to our constitutional democracy — as evidenced by the Press Clause of the First Amendment.
Mindful of that, one might ask: Are journalism students to be taught that business concerns, however corrupt, should categorically trump journalistic ethics? Is that the new realist maxim? If so — if editorial decisions are informed by “mob boss” dictums — then why should the public trust and support these captains of communication?
When free press principles flee out the door, what remains are ill-informed profit-making interests unanchored in Madisonian ideals. In the process, journalistic ethics succumb to mobster-like subjugation. Just as government oppression must be vigorously opposed, so too corporate suppression must be strongly condemned.
When it comes to criticism, the First Amendment door swings both ways: against governmental intimidation and corporate capitulation. While CBS and its parent company may have a right to be cowardly, they enjoy no right to be free of public censure for it.
Given the cowardice exemplified by CBS, just how sympathetic should the public be to the concessions it’s made and will likely continue to make? A few thoughts, pragmatic and principled, come to mind:
First, there is safety in numbers. When individuals, law firms, colleges, and/or media entities stand alone, they are most vulnerable. By that measure, media groups must respond on a unified front to government intimidation, since such actions threaten all media outlets. (Might Fox News, for example, be more sensitive to this problem now that Trump has sued Rupert Murdoch and TheWall Street Journal?)
My next recommendation is more complicated, but no less important. Since CBS has been so pathetically craven, why should citizens not exercise their First Amendment rights and stoutly condemn it, openly protest at its headquarters, and launch a petition campaign against it? Those who betray society’s trust ought to be denounced by the public.
“Journalism is a constitutionally protected activity. Right now, journalists face intense pressures, threats and harassment. We will not be intimidated in this climate and will continue to do what our readers most rely on us for — report, without fear or favor.”
— Carolyn Ryan, Managing Editor, The New York Times
Mind you, such condemnation is not directed against CBS’s staff, but rather is intended to defend them in their time of professional need — as ironic as it is, their corporate boss is their journalistic enemy. In other words, the Paramount Global gods must learn that there are adverse consequences to their spineless capitulations.
Meanwhile, The Des Moines Register and The Wall Street Journal are to be applauded for their vigorous defense of journalistic principles. In time, and when they prevail, one thing will become patently clear: their courage was also a smart business move!
Over at First Amendment Watch (NYU), I’m maintaining a repository of all Trump 2.0 First Amendment-related Executive Orders, information about legal challenges to the Administration’s actions and policies, and commentary about how Trump 2.0 has affected free expression. The repository is updated weekly and the Table of Contents links to relevant areas and materials. I put this resource together for anyone interested in following the extraordinary number of actions the Administration has taken that implicate freedom of expression.
Later this year, I’ll be publishing a book with Carolina Academic Press, Trump 2.0: Executive Power and the First Amendment, that organizes the materials in a way that will help teachers, students, and others learn about Trump 2.0 First Amendment controversies. Among the questions the book discusses: How can executive power be used to threaten free expression, how do executive actions differ from legislative acts in terms of their ability to affect freedoms of speech and press, and how have traditional First Amendment doctrines performed in response to executive actions
“This morning Judge Young heard closing arguments in AAUP v. Rubio, a First Amendment challenge to what Plaintiffs have referred to as the federal government’s ‘ideological deportation policy.’ I’ll first summarize the highlights (and lowlights) of the parties’ arguments and then offer some thoughts on how the case might come out.
Judge Young was an active questioner during closing arguments. Rather than simply hear from the parties, he asked several questions about their claims and arguments. . .”
As we are seeing from Trump’s executive orders, the rise of unchecked presidential power is a concern of great and lasting moment as evidenced by this timely article by Peter Shane:
The country is witnessing the creation of an all-powerful institution, and one man is responsible.
No one on the Supreme Court has gone further to enable Donald Trump’s extreme exercise of presidential power than the chief justice of the United States, John Roberts. Associate justices have also written some important opinions shaping executive power, and the Court has issued ever more important unsigned orders, but the most transformative opinions — the opinions that directly legitimize Trump’s unprecedented uses of power — are Roberts’s handiwork. This is not happenstance. Under Supreme Court practice, the most senior justice in the majority — which is always the chief justice when he so votes — determines who will write the main opinion. Roberts reserved these milestones for himself.
Chief Justice John Roberts
And what milestones they have been. Roberts upheld the first Trump administration’s ‘Muslim ban’ on the grounds that the president’s national-security role precludes courts from taking into account the bigotry undergirding an immigration order. He remanded a lower court’s enforcement of a congressional subpoena for Trump’s financial information, writing that ‘without limits on its subpoena powers,’ Congress could exert ‘imperious’ control over the executive branch and “aggrandize itself at the President’s expense.” He has come close to giving the president an untrammeled right to fire any officer in the executive branch at will. And he took the lead in inventing a presidential immunity from criminal prosecution that could exempt the president from accountability for even the most corrupt exercises of his official functions.”
Tennessee law banning recruiting pregnant minors for abortions held unconstitutional
From Sixth Circuit Judge Julia Gibbons, sitting by designation on M.D. Tenn., in today's Welty v. Dunaway:
“[A Tennessee law, § 39-15-201,] makes it a crime to “intentionally recruit[ ] … a pregnant unemancipated minor” in Tennessee “for the purpose of” obtaining an abortion that would be illegal in Tennessee. But § 39-15-201 does not merely bar recruitment of minors to facilitate illegal abortions in Tennessee; it bars recruitment of minors to facilitate abortions “regardless” of where the procedure occurs. In other words, the law prohibits recruiting an out-of-state abortion that is entirely legal in that state, so long as it would be illegal in Tennessee…
Defendants do not contest that the recruitment provision is a content- or viewpoint-based restriction. In fact, in some parts of their brief, they appear to concede the very point. They argue instead that this is permissible because ‘much of the speech covered by the Act is unquestionably incident to criminal conduct.’ But plaintiffs’ intended speech seeks only to recruit minors for purposes of obtaining a legal abortion. Thus, plaintiffs’ speech cannot be speech integral to crime. And, for the reasons discussed, it is protected speech…
The recruitment provision therefore regulates plaintiffs’ speech because of its message — ‘that abortion is safe, common and normal’ and available in certain states — and is presumptively unconstitutional. And defendants fail to show — indeed, they do not even argue — that the law survives strict scrutiny…”
Robert Corn-Revere has been a First Amendment litigator for more than four decades. He is a prominent writer, thinker, and advocate on free expression issues. In 2021, Cambridge University Press published his book, “The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma,” which explores how free expression became a part of America’s identity.
In 2003, he successfully petitioned Governor George E. Pataki to grant the first posthumous pardon in New York history to the late comedian Lenny Bruce, who was convicted for “obscene” comedy routines.
This event is sponsored by The Doudna Fine Arts Center, College of Liberal Arts & Sciences, Booth Library, and University Advancement.
The lawsuit filed in U.S. District Court in Lafayette in March 2023 by Lynette Mejia and Melanie Brevis, founders of Lafayette Citizens Against Censorship, was settled this week with LCG, Judge and current board president Daniel Kelly.
[. . .]
The settlement includes the following:
“Prohibits the display of Louisiana Revised Statue 14:103, defining disturbing the peace, on library board meeting room doors.
Prohibits Louisiana Revised Statute 14:103 from being read aloud or distributed at library board meetings.
Prohibits rules that limit protected speech from being read or enforced at library board meetings.
Prohibits law enforcement officers from standing in the front of the library board meeting room during meetings.
Requires LCG to provide the library board and other commissions with instructions on Louisiana Open Meetings Law and First Amendment rights.
Requires a bound copy of the Open Meetings Law to be displayed on a stand near the library board meeting room.”
No, Ben Franklin was not the author of the following famous quote
Without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty, without freedom of speech, which is the right of every man, as far as by it, he does not hurt or control the right of another: And this is the only check it ought to suffer, and the only bounds it ought to know. This sacred privilege is so essential to free governments, that the security of property, and the freedom of speech, always go together; and in those wretched countries where a man cannot call his tongue his own, he can scarcely call anything else his own. Whoever would overthrow the liberty of the nation, must begin by subduing the freeness of speech; a thing terrible to public traitors.
’ podcast on AI, the Digital Services Act, and the Paxton case
We cover the state AI regulation moratorium that failed in Congress, the ongoing Character A.I. lawsuit, the Federal Trade Commission’s consent decree with Omnicom and Interpublic Group, the European Union’s Digital Services Act, and what comes next after the Supreme Court’s Free Speech Coalition v. Paxton decision.
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned order of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)
Free speech-related
Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE.
