stLouISTNo, reporting is not ‘incitement’
Remember when President Donald Trump derided the news media and flatly declared that “what they do is illegal” during a speech at the Department of Justice?
Turns out, he meant it.
The Trump administration is increasingly accusing journalists of inciting violence or lawlessness — and possibly breaking the law — by simply reporting the news. It’s now made these claims at least three times, all related to reporting on the government’s immigration crackdown.
It’s bad enough that the administration wants to jail journalists for refusing to reveal their sources or for obtaining and publishing classified information. But these recent accusations seem to raise a third possibility: prosecuting journalists for incitement, the crime of instigating others to break the law.
Unsurprisingly, none of the reporting that the government has attacked comes anywhere close to the legal definition of incitement under the First Amendment. But even baseless accusations aren’t harmless. They can chill reporting and leave the public less informed.
A trio of troubling threats
The most recent example of the Trump administration accusing reporters of incitement for straightforward journalism is its attack on CNN for reporting on ICEBlock, an app that alerts users when Immigration and Customs Enforcement agents are nearby.
In response to a question from The Daily Wire suggesting that CNN’s report was “promoting” ICEBlock, press secretary Karoline Leavitt directly accused CNN of inciting “further violence against our ICE officers.”
Leavitt admitted that she hadn’t actually watched the CNN segment before she made this accusation. If she had, she would have seen that nothing in CNN’s report comes even remotely close to encouraging violence against ICE officers.
Rather, CNN spoke to ICEBlock’s creator, who described how the app works and, crucially, how it could allow people to avoid encountering ICE officers, who have been known to violently attack people and arrest U.S. citizens. The CNN reporter also quoted a warning from the app that said it’s not to be used to interfere with law enforcement or incite violence.
Yet the Department of Justice is reportedly considering prosecuting CNN, and Secretary of Homeland Security Kristi Noem flatly declared, “What they’re doing is illegal.”
Similarly, Federal Communications Commission Chair Brendan Carr strongly implied to Fox News that radio station KCBS had encouraged violence against ICE agents by reporting on an immigration raid in east San Jose earlier this year. KCBS is now the subject of an unconstitutional investigation by the FCC for its report, which the station appears to have removed from its website.
When discussing the KCBS broadcast on Fox, Carr made sure to note both that the area of the city being raided was known for “violent gang activity,” and that the broadcast was made “against the backdrop of Democratic leaders in Congress saying it’s time for people to take fights to the street against Trump’s agenda.” What Carr didn’t mention is that there was no evidence of any violence against ICE agents during or after the raid.
Finally, the White House recently rebuked The New Yorker for its reporting on the Trump administration’s targeting of Democratic lawmakers and their staff who’ve opposed the immigration crackdown, like Rep. LaMonica McIver, who was charged with assaulting a federal officer outside of an immigration detention facility in a case that she’s called “political intimidation.”
In response to the New Yorker’s reporting about these and other incidents, a White House spokesperson said, “It’s alarming Democrats think they can obstruct federal law enforcement, assault ICE agents, or physically push law enforcement officers while charging a cabinet secretary, without consequence—it’s even more alarming that the New Yorker is encouraging this lawless behavior.”
Again, nothing in the New Yorker’s report “encouraged” anything. The magazine relied on regular journalistic techniques for its reporting, such as interviewing sources, and reviewing videos and past reporting to report straightforwardly on what’s happened to Democrats detained or arrested while opposing the Trump administration’s immigration policies.
None of this is incitement
Not only does none of this reporting actually encourage anyone to do anything illegal, it also fails to meet the legal standards for “incitement,” which the First Amendment sets incredibly high.
Under the First Amendment, a person can be found guilty of incitement only if they advocate for imminent lawless action and their speech is likely to incite or produce such action. It also requires intent to induce another to break the law. To protect against governmental overreach and censorship, general advocacy — even of violence or another crime—can’t be criminalized.
Writing a news story about someone else’s conduct, even if their actions are illegal, obviously doesn’t meet this standard. Reporting on something isn’t an endorsement of it, let alone advocacy for others to immediately break the law. Even editorials or op-eds praising illegal conduct would fall under the category of general advocacy, protected by the First Amendment.
But the officials slinging these accusations against the press don’t care as much about the law as they do about chilling reporting. It’s not surprising, then, that they’ve focused on journalism about ICE.
As the public’s approval for Trump’s handling of immigration drops, the government knows that the more people learn about the cruel, illegal, and deadly tactics it’s using to deport their neighbors, the more blowback it will face. It’s counting on its spurious accusations to silence reporting. The only antidote? For journalists to keep reporting.