Last week, it was widely reported that the Department of Justice (DOJ) would not approve AT&T’s proposed purchase of Time Warner unless AT&T agreed to sell off either DirecTV or Turner Broadcasting. Turner is the parent company of CNN—which President Trump has repeatedly attacked as “fake news” in response to its largely accurate, if often negative, coverage of him and his administration. Thus, critics worry that, as a New York Times story put the point, Trump may be “the first president since Richard Nixon to use the levers of executive power to threaten the economic interests of a news organization whose coverage he does not like.”
That worry is not simply a concern about norm breaking by an unusual president. If retaliation against CNN for negative coverage motivates the DOJ’s position, then the administration has violated the First Amendment—even if the merger is otherwise objectionable on antitrust grounds.
And if that point sounds familiar, it’s because we have been down this same road very recently and repeatedly. In area after area—from his travel ban seemingly targeting Muslims, to his ending of Deferred Action for Childhood Arrivals (DACA) based on alleged anti-Mexican bias, to his abrupt determination that transgender Americans should no longer be permitted to serve in the armed forces—Trump has tainted his policies with his illicit intent.
Free Speech and Free Press Basics
To see how the Trump DOJ might have run afoul of the First Amendment, consider a hypothetical case. Suppose that Irene’s car sports a bumper sticker supporting candidate Jones for sheriff. Officer Krupke supports Lewis for sheriff, so he pulls Irene over and tickets her for failure to make a complete stop at a stop sign. District Attorney Klondike, who is also hostile to Jones supporters, brings a prosecution. Irene cries foul. She admits that she rolled through the stop sign, but, she says, that’s not why Krupke stopped her nor why Klondike is prosecuting her. Krupke routinely ignores rolling stops, only ticketing drivers who manifest support for Jones or opposition to Lewis. And Klondike pleads out rolling stops by drivers who do not support Jones. This selective enforcement, Irene says, violates the First Amendment.
Irene is right. An otherwise proper prosecution is unconstitutional if undertaken for an illicit purpose, and censorship is surely an illicit purpose.
To be sure, the Supreme Court has held that the Fourth Amendment does not bar pretextual traffic stops. But in the very case establishing that principle, the Court distinguished the Fourth Amendment—which focuses on objective factors known to the arresting officer—from other constitutional provisions that make subjective motive relevant. The Court identified racial discrimination in violation of the Equal Protection Clause as different from the Fourth Amendment rule. Likewise, viewpoint discrimination in violation of the free speech and free press clauses of the First Amendment would also render pretextual prosecutions impermissible, and other cases have so held.
Interestingly, just this week the Supreme Court granted review in a new case that presents the question whether the existence of probable cause to arrest precludes civil damages for the arrest. The municipal defendant relies on a 2006 Supreme Court ruling establishing that probable cause does defeat a retaliatory prosecution claim for damages. However, that ruling was based on a peculiarity of the law of immunity for civil damages. Neither the 2006 ruling nor the new case, regardless of how the Court ends up ruling, casts any real doubt on the proposition that a prosecution undertaken for the purpose of retaliating against speech violates the First Amendment. These cases are about when civil damages are available, not about the substantive constitutional right.
Of course, it will often be difficult to prove illicit intent. Krupke will likely claim that Irene’s pro-Jones bumper sticker played no role in his decision to arrest her. To overcome that sort of testimony, Irene would need to rely on Krupke’s and Klondike’s prior statements, if any, and the larger pattern of arrests and prosecutions. A sufficiently large correlation between overt political viewpoint and likelihood of arrest and prosecution could be sufficient.
However, even a stark pattern might not establish unlawful selective prosecution if there is a plausible innocent explanation. For example, in a 1985 case, the Supreme Court considered a selective prosecution objection to the government policy of investigating and prosecuting young men who notified the government that they had unlawfully failed to register for the draft but not investigating or prosecuting other young men who failed to register. A defendant in one such case argued that the government policy punished only those non-registrants who protested and was thus targeted at speech. The justices rejected the argument, because they concluded that the government’s “passive enforcement policy” was based on administrative convenience rather than hostility to the message of anti-draft-registration protesters. In other words, the government was going after these particular non-registrants because their protests made them easy to detect, not because they protested.
Meanwhile, a defendant who claims that he is being singled out for prosecution on illicit grounds cannot obtain discovery—that is, the opportunity to examine government witnesses and records—without first making “a credible showing of different treatment of similarly situated persons.” That standard was articulated in a Supreme Court case involving allegations of selective prosecution based on race, but it applies equally in cases involving allegations of selective prosecution based on free speech.
Evaluating DOJ’s Motives
How do these principles apply to the DOJ’s efforts to block AT&T’s proposed acquisition of Time Warner absent divestiture of DirecTV or Turner? The ultimate answer is not entirely clear, but a district court judge ought to be able to order discovery regarding the government’s motives in the event that AT&T rejects the government’s conditions, the DOJ sues to block the merger, and AT&T responds that the lawsuit unconstitutionally aims to retaliate against CNN for the latter’s supposed anti-Trump speech.
Before coming to that conclusion, however, let us consider the best argument against the selective enforcement contention. It rests on a concern about industry consolidation.
AT&T currently owns assets that allow transmission of internet and other signals to mobile and fixed devices. Acquiring Time Warner and especially Turner Broadcasting would create synergy. The post-merger company could promote its content on its delivery assets.
Yet that very benefit to the company could work to the detriment of consumers. AT&T Wireless and DirecTV could give preferential access to Turner brands, potentially charging higher prices for other content or making such third-party content more difficult to access. That worry has nothing to do with censorship. Some evidence for the view that this viewpoint-neutral concern actually motivates the DOJ’s action can be found in the fact that DOJ is not insisting that AT&T divest CNN as such; it is asking AT&T to divest all of the Turner assets or to divest DirecTV. Neither such move would necessarily weaken CNN, and either one seems closely related to the consolidation worry.
Other factors point in the opposite direction, however. Chief among them must be President Trump’s repeated disparagement of and hostility to CNN. Although as a candidate he stated his opposition to the merger in terms of industry consolidation, as president, Trump has shown a willingness to threaten regulatory action in retaliation for negative news coverage. For example, just last month, Trump threatened NBC’s broadcast license in response to its report that he had indicated a desire to increase the nation’s nuclear stockpile by a factor of ten. Never mind that the president cannot take such an action unilaterally; his willingness to make the suggestion indicates that in this administration retaliation against the press is an active possibility.
Furthermore, as numerous antitrust experts have noted, in recent years neither the DOJ nor the courts have worried much about vertical integration of the sort promised by the AT&T acquisition of Time Warner. So long as the post-merger company does not dominate either the market for communications channels or for content, competition will be robust.
Admittedly, the administration could take a different view. It could worry that an oligopolistic marketplace of vertically integrated providers of both channels of communication and content would harm consumers, who could not get the packages they want.
That would be a fair response, but not a credible one from this administration. Far from demonstrating a new interest in preventing vertically integrated companies from using their leverage in the delivery market to advantage their own content, the Trump administration has moved in exactly the opposite direction. Earlier this year President Trump nominated and the Republican-led Senate confirmed Ajit Pai as the chair of the Federal Communications Commission (FCC). Pai’s signature goal is the elimination of net neutrality rules. In other words, Pai and the Trump administration want to make it easier for companies to use their delivery services as a choke point for favoring their own content. Against that backdrop, the Trump DOJ’s professed concern about vertical consolidation appears to be pretextual.
That is not to say that the DOJ’s efforts to block the acquisition absent divestiture of DirecTV or Turner necessarily are motivated by Trump’s pique at CNN, only that a credible case for that conclusion can be made based on the available evidence. Accordingly, if the case winds up in court, a judge would be well within his rights to authorize discovery aimed at uncovering the actual motives of the Trump administration.