This Article explores the wider constitutional and democratic consequences of a president’s refusal to engage in counterspeech on matters of public concern. It argues that both fundamental principles of First Amendment theory and watershed cases from the United States Supreme Court presuppose a constitutional system of dialogue between the press and the executive in which the president offers verifiable, supported, fact-based counterspeech to press coverage with which he disagrees. Part II of this Article describes how marketplace-of-ideas, self-governance, and checking-function principles—although more often invoked to protect private speech from governmental restriction—also manifest a longstanding assumption of executive counterspeech. It explores the clear expectation within First Amendment jurisprudence that presidents will dialogue with, rather than shut down, the press when the press’s reporting on matters of public concern is erroneous, misleading, or otherwise faulty. Part III of this Article describes the essential characteristics of this democracy-enhancing counterspeech and the ways in which nonresponsive retorts fall short of meeting the constitutional aims envisioned by the Court. Part IV details the harms that follow from these failings. I argue that, in addition to having the significant consequences of hampering government accountability and the public’s quest for truth, flouting the norm of executive counterspeech diminishes the wider tone of dialogue nationally and threatens the viability of the larger marketplace of ideas. The abandonment of this norm creates a grave threat to the democracy-enhancing role of accurate press coverage. But it also disserves democratic and free-speech values when the press coverage is inaccurate. Indeed, despite the President’s apparent goal of disparaging the press, his failure to engage in executive counterspeech may leave the press itself insufficiently checked by the executive.
RonNell Andersen Jones,
The Press and the Expectation of Executive Counterspeech,
83 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol83/iss4/7