E C P NEMY ONSTRUCTION AND THE RESS RonNell Andersen Jones* & Lisa Grow Sun† ABSTRACT When the President of the United States declared recently that the press is “the enemy,” it set off a firestorm of criticism from defenders of the institutional media and champions of the press’s role in the democracy. But even these Trump critics have mostly failed to appreciate the wider ramifications of the President’s narrative choice. Our earlier work describes the process of governmental “enemy construction,” by which officials use war rhetoric and other signaling behaviors to convey that a person or institution is not merely an institution that, although wholly legitimate, has engaged in behaviors that are disappointing or disapproved, but instead an illegitimate “enemy” triggering a state of Schmittian exceptionalism and justifying the compromise of ordinarily recognized liberties. The Trump administration, with a rhetoric that began during the campaign and burgeoned in the earliest days of Donald Trump’s presidency, has engaged in enemy construction of the press, and the risks that accompany that categorization are grave. This article examines the fuller components of that enemy construction, beyond the overt use of the label. It offers insights into the social, technological, legal, and political realities that make the press ripe for enemy construction in a way that would have been unthinkable a generation ago. It then explores the potential motivations for and consequences of enemy construction. We argue that enemy construction is particularly alarming when the press, rather than some other entity, is the constructed enemy. Undercutting the watchdog, educator, and proxy functions of the press through enemy construction leaves the administration more capable of delegitimizing other institutions and constructing other enemies—including the judiciary, the intelligence community, immigrants, and members of certain races or religions—because the viability and traction of counter-narrative is so greatly diminished. * Lee E. Teitelbaum Chair & Professor of Law, S.J. Quinney College of Law, University of Utah Law School. † Professor, Brigham Young University Law School. The authors thank Floyd Abrams, David Schulz, and the participants of the Yale Freedom of Expression Scholars Conference for their valuable feedback on the ideas in this article. Thanks also to Elise Faust, Morgan Hoffman, Sara Jarman, Kristine Ingle, Rebekah Keller, and Angie Shewan for their research assistance. 1302 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. I. INTRODUCTION.................................................................................... 1303 II. ENEMY CONSTRUCTION OF THE PRESS BY THE TRUMP ADMINISTRATION ................................................................................ 1304 A. Schmitt and the Role of Enemy Construction .............................. 1305 B. Trump’s Enemy Construction Methodology ............................... 1307 1. Rhetorical Framing................................................................. 1308 2. Treatment Designed to Signal Delegitimization .................... 1316 3. Anticipatory Undercutting ..................................................... 1323 C. Distinguishing Enemy Construction of the Press from Press Tension ......................................................................................... 1326 1. Press-President Tensions ........................................................ 1327 2. Distinguishing Tensions from Enemy Construction .............. 1331 III. THE EMERGENT VULNERABILITY OF THE MAINSTREAM MEDIA TO ENEMY CONSTRUCTION ...................................................................... 1334 IV. THE MOTIVATIONS FOR AND CONSEQUENCES OF ENEMY CONSTRUCTION ................................................................................... 1343 A. Potential Motivations for Enemy Construction ........................... 1343 B. The Risks of Schmittian Exceptionalism ..................................... 1347 1. Enemy Construction and the State of Exception.................... 1347 2. Exceptionalism and Press Freedom ....................................... 1350 a. Limitation of Constitutional Press Freedoms .... 1350 b. Limitation of Press Protections Within Executive Control .............................................................. 1353 C. Diminishment of Press Functions and Reduction of Barriers to Construction of Other Enemies ................................................ 1356 1. Reduction of the Press’s Watchdog Function ........................ 1357 2. Reduction of the Press’s Educator Function .......................... 1360 3. Reduction of the Press’s Proxy Function ............................... 1363 D. Potential Mitigating Factors ......................................................... 1367 V. CONCLUSION ....................................................................................... 1368 49:1301] ENEMY CONSTRUCTION 1303 I. INTRODUCTION When newly elected President Donald Trump declared that the mainstream press is “the enemy,” it set off a firestorm of criticism from defenders of the institutional media and champions of the press’s role in the democracy.1 That pushback is unquestionably correct. But even these Trump critics have not explored in depth the wider ramifications of the President’s narrative choice. Our earlier work describes the process of governmental “enemy construction,”2 by which officials construct a public enemy that they can then combat. We have noted that when engaging in this enemy construction, government uses war rhetoric and other signaling behaviors to convey that a person or institution is not merely an institution that, although wholly legitimate, has engaged in behaviors that are disappointing or disapproved, but instead is an illegitimate “enemy.” As we have discussed elsewhere, one motivation the government might have for constructing an institution as an enemy is explained by the work of political theorist Carl Schmitt, who envisions a state of exception for such enemies that can be used to justify the compromise of ordinarily recognized liberties.3 The Trump administration, with a rhetoric that began during his campaign and has burgeoned in his presidency, has engaged in enemy construction of the press, and the risks that accompany that categorization are grave. Part II of this article scrutinizes the fuller components of that enemy construction, beyond the overt use of the label. It draws upon our earlier work on enemy construction to explore the ways that Schmitt’s “public enemy” principle appears to be a controlling theme of the current administration’s approach to governance. It explores the rhetorical framing, the delegitimizing signaling, and the anticipatory undercutting that are the primary tools in the administration’s current enemy construction of the press and describes how 1. See, e.g., Jon Finer, A Dangerous Time for the Press and the Presidency, ATLANTIC (Feb. 20, 2017), https://www.theatlantic.com/politics/archive/2017/02/a-dangerous-time-for-the- press-and-the-presidency/517260/; Andrew Higgins, Trump Embraces ‘Enemy of the People,’ a Phrase with a Fraught History, N.Y. TIMES (Feb. 26, 2017), https://www.nytimes.com/2017/02/26/world/europe/trump-enemy-of-the-people-stalin.html; Martha Minow & Robert Post, Standing Up for ‘So-Called’ Law, BOS. GLOBE (Feb. 10, 2017), https://www.bostonglobe.com/opinion/2017/02/10/standing-for-called- law/VLbDYmrwpdjCn8qs5FPJaK/story.html; William Steakin, Dan Rather Blasts Trump’s Attack on the Press as ‘a Deep Betrayal,’ AOL (Feb. 18, 2017, 3:02 PM), https://www.aol.com/article/news/2017/02/18/dan-rather-blasts-trumps-attack-on-the-press-as- a-deep-betraya/21716862/. 2. Lisa Grow Sun & RonNell Andersen Jones, Disaggregating Disasters, 60 UCLA L. REV. 884, 924–25 (2013). 3. Id. at 924. 1304 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. this enemy construction is not merely different in degree but different in kind from the tensions and antagonisms with the press that have punctuated many previous presidencies. Part III offers insights into the social, technological, legal, and political realities that make the press ripe for enemy construction in a way that would have been unthinkable a generation ago. Part IV then describes the motivations behind and the risks accompanying this enemy construction, examining the potential contours of Schmittian exceptionalism generally and in the press context. It explores the ways that enemy construction is particularly alarming when it is the press, rather than some other entity, that is the constructed enemy. We argue that subverting the watchdog, educator, and proxy functions of the press through enemy construction both diminishes our democracy and empowers the administration to delegitimize other institutions and construct other enemies—including the judiciary, the intelligence community, and certain races or religions—because the viability and traction of counter-narrative is so greatly diminished. II. ENEMY CONSTRUCTION OF THE PRESS BY THE TRUMP ADMINISTRATION On the campaign trail and throughout his first year in office, President Trump and his administration have overtly labeled the mainstream press “the enemy of the American People,”4 barred major news organizations from attending daily White House briefings,5 and excoriated the press almost daily in the most inflammatory of terms.6 These are just a few examples of the many ways, discussed more fully below, that the Trump administration has constructed the press as an enemy. Analyzing these actions through the paradigm of enemy construction offers important clues into the motivations of the Trump administration’s portrayals and treatment of the press, as well as some important insights into the consequences of these portrayals and treatment. Our previous enemy- construction scholarship has highlighted the ways in which governmental 4. Donald J. Trump (@realDonaldTrump), TWITTER (Feb. 17, 2017, 1:48 PM), https://twitter.com/realdonaldtrump/status/832708293516632065?lang=en (“The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!”). 5. Adam Liptak, Barring Reporters from Briefings: Does It Cross a Legal Line?, N.Y. TIMES (Feb. 28, 2017), https://www.nytimes.com/2017/02/28/us/politics/white-house-barring- reporters-from-briefings.html. 6. See discussion infra Section II.B. 49:1301] ENEMY CONSTRUCTION 1305 actors are tempted to gravitate toward behaviors evoking the worldview of Carl Schmitt, a German political theorist who examined the foundations of government—often through the lens of emergency powers—during the Weimar Republic.7 An appreciation for Carl Schmitt’s arguments, which have gained renewed traction in recent years, can illuminate the themes of the Trump administration’s decision-making regarding the press and other groups. Trump’s words, behaviors, and “warnings” about the press map remarkably neatly onto these enemy-construction principles, and the framework makes clear that in a very short period of time, the administration has crossed over from a realm of common press-President tensions into the territory of enemy construction. It is constructing an enemy of one of the nation’s core democratic institutions. A. Schmitt and the Role of Enemy Construction In framing our consideration of enemy construction, we focus on Schmitt’s arguments not because we find them persuasive on their own terms nor because we believe that Trump and his administration are necessarily students of Schmitt’s writings, but because they nonetheless—whether purposefully or unwittingly—seem to be taking a page from Schmitt’s playbook and conceptualizing governance in fundamentally Schmittian terms.8 Moreover, Schmitt’s ideas seem to have captured the imagination of a wide array of academics and pundits seeking to explain or justify broad executive power to deal with national security threats decisively—and, often, without constraints imposed by other branches or ordinary legal rules and norms.9 That is, Schmitt’s ideas express the zeitgeist of the creeping national- 7. Ellen Kennedy, Emergency Government Within the Bounds of the Constitution: An Introduction to Carl Schmitt, “The Dictatorship of the Reich President According to Article 48 R.V.,” 18 CONSTELLATIONS 284, 284 (2011). 8. Cf. Kim Lane Scheppele, Law in a Time of Emergency: States of Exception and the Temptations of 9/11, 6 U. PA. J. CONST. L. 1001, 1009 (2004) (noting that Carl Schmitt’s work remains relevant today “because the prolonged period of crisis that Weimar experienced produced theoretical justifications for the state of emergency that are in many ways more resonant to the modern ear” than conceptions articulated by earlier philosophers and adopted in the political systems of, for example, ancient Greece and Rome). 9. See, e.g., ERIC POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC 4 (2010) (relying on Schmitt’s work to argue that the law imposes no real constraints on the executive, who therefore has broad authority checked only by political measures); Christian J. Emden, Lessons from Carl Schmitt: Political Theology, Executive Power and the “Impact of Political Events,” H-NET REVIEWS, Oct. 2006, at 4 (reviewing CARL SCHMITT, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE CONCEPT OF SOVEREIGNTY (George Schwab trans., Univ. of Chi. Press 2005) (1922))), https://www.h-net.org/reviews/showpdf.php?id=12384 1306 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. security exceptionalism that characterized much of the Cold War and that has deepened in many quarters since 9/11—an exceptionalism justified by the identification and declaration of a parade of “existential threats” to the American way of life. Schmitt’s fundamental project is a challenge to liberalism and attendant notions of legality and the rule of law. That challenge is centered around his claim that the sovereign possesses (and must possess) two interrelated powers considered more fully below: the power to choose and declare enemies of the state and the power, in times of emergency, to invoke a “state of exception”— a realm outside of the constraints of law and ordinary norms. In the state of exception, the sovereign has essentially unlimited power to do as it pleases to neutralize threats to the political community’s “way of life.”10 In the Schmittian worldview, the essence of politics—its defining activity—is the “struggle against the enemy.”11 So understood, politics12 is the division of the world into friend and enemy,13 where the enemy is “the other, the stranger”—one who “in a specially intense way” is “existentially something different and alien, so that in the extreme case conflicts with him are possible.”14 This enemy is not a private enemy, a “private adversary whom one hates,” but rather “the public enemy” that emerges from the potential conflict between “one fighting collectivity of people” with another.15 A sovereign state that loses the “capacity or the will” to decide who qualifies as an enemy “ceases to exist politically.”16 So conceptualized, a sovereign must be willing to police its boundaries to keep the enemy out—to maintain its political boundaries by excluding those who don’t belong. (“Schmitt’s vision of the Reichspräsident as safeguarding the constitution through extra- constitutional authority ties in almost perfectly with current proposals by some public lawyers, at least in the United States, for what is often termed a ‘unitary executive.’”). 10. CARL SCHMITT, THE CONCEPT OF THE POLITICAL 49 (George Schwab trans., Rutgers Univ. Press 1976) (1932). 11. George Kateb, Political Action: Its Nature and Advantages, in THE CAMBRIDGE COMPANION TO HANNAH ARENDT 130, 132 (Dana Villa ed., 2000). 12. Schmitt, of course, distinguishes between everyday, ordinary “party politics” and the truly political. SCHMITT, supra note 10, at 32 (distinguishing “party politics” from the truly “political,” which is oriented toward and organized around the friend/enemy dichotomy). 13. Id. at 26 (“The specific political distinction to which political actions and motives can be reduced is that between friend and enemy.”). 14. Id. at 27. 15. Id. at 28. Indeed, in pure Schmittian thinking, a real enemy exists only if there is some “real possibility” of violence latent in the conflict. Id. at 33, 49. 16. Id. at 49. 49:1301] ENEMY CONSTRUCTION 1307 Moreover, Schmitt recognizes the possibility not only of external enemies, but also of domestic or internal enemies.17 The state may use a variety of techniques to delineate and designate these enemies—including “ostracism, expulsion, proscription, or outlawry”—but “the aim is always the same, namely to declare an enemy.”18 These “declared enemies of state”19 are those who threaten the political unity of the state in a variety of ways, including aiding and abetting an external enemy whom the state has decided constitutes an “existential threat” to the political community’s “own way of life.”20 Aid to external enemies need not necessarily be material, concrete aid; rather, “[i]f a part of the population declares that it no longer recognizes enemies, then, depending on the circumstance, it joins their side and aids them.”21 Indeed, challenging the sovereign’s designation of external enemies itself threatens the “homogeneity of opinion”—or “[m]inimal agreement” on values—that Schmitt views as a “precondition for the existence of a political community.”22 Accordingly, the sovereign “must homogenize the community by appeal to a clear friend-enemy distinction, as well as through the suppression, elimination, or expulsion of internal enemies who do not endorse that distinction.”23 On this view, diversity is a weakness, a threat to the state that can and should be extinguished. B. Trump’s Enemy Construction Methodology In an angry tweet four weeks into his presidency, President Trump derided “the FAKE NEWS media” as “the enemy of the American people.”24 He listed some mainstream news organizations by name and amended the tweet minutes later to add more—ultimately referencing three of the nation’s primary broadcast news organizations and the newspaper boasting the 17. Id. at 46 (“As long as the state is a political entity this requirement for internal peace compels it in critical situations to decide also upon the domestic enemy. Every state provides, therefore, some kind of formula for the declaration of an internal enemy.”). 18. Id. at 47. 19. Id. 20. Id. at 49. 21. Id. at 51. 22. GAVIN RAE, THE PROBLEM OF POLITICAL FOUNDATIONS IN CARL SCHMITT AND EMMANUEL LEVINAS 124 (2016); CARL SCHMITT, THE CRISIS OF PARLIAMENTARY DEMOCRACY 9 (Thomas McCarthy ed., Ellen Kennedy trans., MIT Press 1985) (1923) (“Democracy requires, therefore, first homogeneity and second—if the need arises—elimination or eradication of heterogeneity.”). 23. Lars Vinx, Carl Schmitt, STAN. ENCYCLOPEDIA PHIL. (Oct. 1, 2014), https://plato.stanford.edu/archives/spr2016/entries/schmitt/. 24. Trump, supra note 4. 1308 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. second-largest circulation in the country and long regarded as a national newspaper of record.25 Administration officials confirmed that the President meant what he said,26 and in the following days, the President doubled down on the statement.27 As a pure matter of labeling, then, the President might be said to have constructed the press as an enemy. But enemy construction as envisioned by Schmitt is a more complicated and nuanced delineation. Simple labeling—even the overt use of the term “enemy”—might still be construed as little more than a hyperbolic complaint about a friendly “insider” institution, rather than the construction of an “other” foe. Schmittian enemy construction is instead a more intense and focused process of persuading the relevant insider audiences that this enemy “other” is “existentially something different” in a “specially intense way.”28 Even under this more rigorous set of criteria for enemy construction, though, Trump’s relationship with the press seems unquestionably calculated to construct the press as an enemy. The deeper and broader constructive work is seen in at least three ways: (1) Trump’s rhetorical framing of the press; (2) his delegitimizing treatment of the press; and (3) his anticipatory undercutting of the press. That is, in the things he says, the things he does, and the things he forecasts, Trump is consistently and unrelentingly delineating the press as an enemy—an “other” that threatens the political unity of the state and that ought to be distrusted, countered, and perhaps ultimately stripped of ordinarily observed rights and liberties because of this exceptional status. 1. Rhetorical Framing The use of the term “enemy of the people” goes a long distance toward an effort to sever an institution from the body politic, to be sure. Yet a fuller investigation of Trump’s rhetorical framing of the press reveals a much more comprehensive compilation of rhetorical signals designed for enemy construction. In its frequency, negativity, definitiveness, and reductionism, 25. Roger Yu, USA Today, WSJ, NYT Are Top Three Papers in Circulation, USA TODAY (Oct. 28, 2014, 12:46 PM), http://www.usatoday.com/story/money/business/2014/10/28/aam- circulation-data-september/18057983/. 26. Trump, supra note 4. 27. Office of the Press Secretary, The White House, Remarks by President Trump at the Conservative Political Action Conference (Feb. 24, 2017), https://www.whitehouse.gov/the- press-office/2017/02/24/remarks-president-trump-conservative-political-action-conference [hereinafter CPAC Transcript]. 28. SCHMITT, supra note 10, at 27. 49:1301] ENEMY CONSTRUCTION 1309 Trump’s rhetoric unquestionably frames the media, or at least broad swaths of those working within it, as the enemy. Early in what was once conceived of as a long-shot campaign for the Republican nomination,29 Trump and his surrogates took on the mantle of openly, publicly rebuking the press in unprecedented ways. His campaign events were consistently marked with abusive rhetoric about and toward working journalists attending the events,30 and he encouraged supporters to join him in taunts and jeers directed at the press corps.31 Mocking, criticizing, and verbally attacking individual reporters and media executives became a staple of Trump’s presentations.32 The starkness of the chosen terminology— 29. Peter Morici, Why Trump (Still) Remains a Long Shot, FOX NEWS (Sept. 21, 2016), http://www.foxnews.com/opinion/2016/09/21/why-trump-still-remains-long-shot.html; Brian Schwartz, Once Viewed as Long Shot, Investors Now Realize Trump Might Win, FOX BUS. (Sept. 14, 2016), http://www.foxbusiness.com/markets/2016/09/14/once-viewed-as-long-shot- investors-now-realize-trump-might-win.html. 30. See, e.g., Kyle Balluck, Trump Knocks New York Times Ad Campaign: ‘Try Reporting Accurately & Fairly,’ HILL (Feb. 26, 2017, 7:14 AM), http://thehill.com/homenews/administration/321220-trump-knocks-new-york-times-ad- campaign-try-reporting-accurately (attacking The New York Times); Jonathan Easley, Trump Takes Feud with Press to Campaign Rally in Florida, HILL (Feb. 18, 2017, 6:27 PM), http://thehill.com/homenews/administration/320262-trump-doubles-down-on-media-i-will- never-let-them-get-away-with-it (rebuking the media at rally); Rebecca Savransky, Media Members Defend NBC Reporter Targeted by Trump, HILL (Nov. 2, 2016, 1:36 PM), http://thehill.com/blogs/blog-briefing-room/news/304011-media-members-defend-nbc-reporter- targeted-by-trump (criticizing Katy Tur); Donald Trump Taunts NBC News’ Katy Tur at Miami Rally, BLOOMBERG POL. (Nov. 2, 2016, 12:33 PM), https://www.bloomberg.com/politics/videos/2016-11-02/donald-trump-taunts-nbc-news-katy- tur-at-miami-rally (criticizing Katy Tur). 31. See, e.g., Josh Feldman, ‘I Love It!’ Trump Taunts WaPo at Rally After Revoking Press Credentials, MEDIAITE (June 14, 2016, 8:03 PM), https://www.mediaite.com/online/i-love-it- trump-taunts-wapo-at-rally-after-revoking-press-credentials/ (“These people in the back . . . [t]hey are so dishonest we just took the press credentials away.”); Donald Trump Taunts the ‘Dishonest’ Media, CNN (Oct. 21, 2016), http://www.cnn.com/videos/politics/2016/10/21/donald-trump-rally-taunts-media.cnn (“We are in a rigged system and a big part of the rigging is the dishonest media.”); Trump Taunts Press Over Being Stuck on Plane, NBC NEWS (Sept. 15, 2016), http://www.nbcnews.com/video/trump- taunts-press-over-being-stuck-on-plane-766441539766 (taunting the press stuck on a plane). 32. See, e.g., Brett Molina, Jeff Bezos, Who Once Joked About Sending Trump to Space, Changes Tune, USA TODAY (Nov. 10, 2016, 10:24 PM), http://www.usatoday.com/story/tech/news/2016/11/10/bezos-congratulates-trump-election- victory/93585602/ (suggesting Bezos is using The Washington Post against Trump); CNN, Trump Mocks Reporter with Disability, YOUTUBE (Nov. 25, 2015), https://youtu.be/PX9reO3QnUAerge (mocking Serge Kovaleski); Did Trump Really Mock a Reporter’s Disability? Videos Could Back Him Up, FOX NEWS (Sept. 14, 2016), http://www.foxnews.com/politics/2016/09/14/did-trump- really-mock-reporters-disability-videos-could-back-him-up.html (showing a series of clips of Trump mocking the press); Highlights of the Donald Trump vs Megyn Kelly Battle, CNN, http://www.cnn.com/videos/politics/2015/08/10/a-timeline-of-donald-trump-vs-megyn-kelly- 1310 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. words like “dishonest,”33 “lying,”34 “failing,”35 “disgusting,”36 “third-rate,”37 “bad,”38 and “scum”39—delegitimized the press beyond the obvious reputational damage attempted. This drumbeat of anti-press rhetoric gained attention for its consistency and for its pure shock value—and, largely because the rhetoric represented such a departure from the norms observed by all previous and contemporary candidates, it took on a “special[] intens[ity]” of the sort Schmitt envisioned.40 Beyond name calling and competency questioning, Trump’s campaign rhetoric about the press cast it in classic enemy lexicon by suggesting to the American people that it systematically abuses the justice system and damages reputations without recourse. This narrative of the “struggle against the enemy” contextualized the threat that the enemy should be seen as posing. 41 Trump’s public remarks regularly characterized reporters as unrepentant origwx-allee.cnn (showing a series of clips of Trump’s comments about Kelly) (last visited Dec. 24, 2017); Trump Shuts Down CNN Reporter, CNN, http://www.cnn.com/videos/politics/2017/01/11/donald-trump-jim-acosta-cnn-fake-news.cnn (“Not you. . . . [Y]ou are fake news.”) (last visited Dec. 24, 2017). 33. Gabriel Schoenfeld, Trump vs. ‘Lying, Disgusting’ Media, USA TODAY (Jan. 11, 2017, 3:59 PM), http://www.usatoday.com/story/opinion/2017/01/11/trump-lying-disgusting-media- espionage-laws-gabriel-schoenfeld-column/96389362/. 34. Id. (“I would never kill them, but I do hate them. And some of them are such lying, disgusting people.”). Some Trump supporters have used the infamous German word “lügenpresse” (meaning “lying press”) to refer to the mainstream American media. See Jeff Nesbit, Donald Trump Supporters Are Using a Nazi Word to Attack Journalists, TIME (Oct. 25, 2016), http://time.com/4544562/donald-trump-supporters-lugenpresse/ (“Supporters of . . . Donald Trump have begun to use an old German word—once invoked by Nazis and now currently in vogue with far-right political activists in Germany—to attack American media covering his campaign.”). 35. Donald J. Trump (@realDonaldTrump), TWITTER (Feb. 16, 2017, 3:58 AM), https://twitter.com/realDonaldTrump /status/832197515248275456. 36. See, e.g., Ali Vitali, In His Words: 19 Notable Thoughts from Donald Trump, NBC NEWS (Aug. 14, 2016, 7:48 PM), http://www.nbcnews.com/politics/2016-election/his-words-19- notable-thoughts-donald-trump-n630446 (“CNN is disgusting . . . .”); Trump: ‘Disgusting Reporters, Horrible People,’ USA TODAY (Mar. 15, 2016), https://www.usatoday.com/videos/news/politics/elections/2016/2016/03/15/81843912/ (calling the press “disgusting reporters, horrible people”). 37. Dylan Byers, Maggie Haberman: The New York Times Reporter Trump Can’t Quit, CNN MONEY (Apr. 7, 2017, 5:21 PM), http://money.cnn.com/2017/04/07/media/maggie- haberman-trump/index.html. 38. Donald J. Trump (@realDonaldTrump), TWITTER (Dec. 11, 2016, 5:02 PM), https://twitter.com/realDonald Trump/status/808114703922843649. 39. Mark Hensch, Trump Calls Media ‘Scum,’ HILL (Oct. 26, 2015, 8:04 AM), http://thehill.com/blogs/ballot-box/presidential-races/258057-trump-the-media-is-scum. 40. SCHMITT, supra note 10, at 27. 41. See id. at 26.