“We remain very concerned about the constitutional implications especially as it relates to the First Amendment,” wrote Jay Sekulow, the Trump-team lawyer who represents Hannity. He was even more explicit in a statement to Axios, referring to “concerns regarding freedom of the press.”
Those statements look like a winning entry into the Hypocrisy Hall of Fame.
Everything about Hannity’s text messages, part of a trove of documents the House panel received from former chief of staff Mark Meadows after a subpoena, scream one thing: that the prime-time host is not a journalist.
“Guys, we have a clear path to land the plane in 9 days,” Hannity wrote in a Jan. 10 text to Meadows and Rep. Jim Jordan (R-Ohio), apparently referring to persuading Trump to end his presidency peacefully before Inauguration Day.
“We can’t lose the entire WH counsels office,” he wrote to Meadows a few days earlier, amid concerns that White House lawyers would resign to protest Trump’s plans to challenge the election results.
I guess we should be grateful that Hannity wasn’t one of those goading Trump toward a coup. But his “we” says it all — he considered himself an adviser and a member of Trump’s inner circle.
If he really were a journalist, the possible defection of the entire White House Counsel’s Office would have been a world-class scoop. Reporting the news didn’t seem to be on Hannity’s mind.
So does he deserve constitutional protection anyway?
“All of us are free to weigh in on public events,” the First Amendment lawyer Floyd Abrams told me in an email Wednesday, “but when Hannity advised the president about the ongoing insurrection he did not do so as a journalist but as an ally, a confederate, a teammate, rather than an umpire or observer.”
This, Abrams had said to me in a phone interview, “is non-journalistic behavior, in fact almost the precise opposite of journalistic behavior.”
Hannity himself has said on more than one occasion that he doesn’t consider himself a member of the press. On other occasions, he has said much worse.
And when Trump started calling the U.S. news media an “enemy of the people” early in his administration, Hannity used his show to spread the smear. “The media is perfectly willing to continue to mislead and lie to you, the American people,” he told his viewers in February, 2017. “They are collectively, the news media, at war with the president.”
Media-bashing like that helped Hannity grow from a mere White House cheerleader into a shadow adviser, or what some called “the Trump whisperer.” He even appeared onstage with Trump at a rally in 2018 — something so far outside the bounds of journalistic behavior that it earned a mild reprimand from his normally all-forgiving employers at Fox.
Does all of this mean that if Hannity refuses the committee’s request and is subpoenaed to appear before investigators, he forfeits the First Amendment protection afforded to journalists trying to do such things as protect their sources or keep their notes for an investigation confidential?
That’s not entirely clear cut, Abrams told me. It depends, at least in part, on what sort of information the committee is seeking.
The committee’s letter suggested that its questions wouldn’t be about Hannity-the-broadcaster but, rather, Hannity-the-insider. It called him “a fact witness in our investigation.”
That kind of inquiry, Abrams told me, ought to be fair game. “The things they want to know about are the least protected” by the First Amendment, he said.
As University of Georgia law professor Sonja R. West told me Wednesday, First Amendment press protections are based on the notion that journalists work on the public’s behalf to gather and share information about matters of public concern, such as governmental wrongdoing.
“There’s nothing here to suggest that this is what he was doing in those texts,” West said. “The First Amendment is not a magic shield that protects you from any and all consequences of your speech that you might not like.”
Fox News and its prime-time hosts have been in this dicey “what-are-we-anyway?” territory before.
In defending prime time star Tucker Carlson in a 2020 slander case, Fox’s lawyers successfully convinced a federal judge that he doesn’t really traffic in facts, anyway. What’s more, his viewers don’t expect him to do so. The judge dismissed the suit, accepting Fox’s argument that what Carlson says on air isn’t meant to be taken literally.
And more recently, text messages related to the Jan. 6 riot from Hannity and his Fox colleagues Laura Ingraham and Brian Kilmeade clearly showed that these broadcasters see themselves as influential insiders.
“Mark, the president needs to tell people in the Capitol to go home,” Ingraham texted Mark Meadows. “This is hurting all of us. He is destroying his legacy.”
It’s bad enough — atrocious, in fact — that Fox News has spread so much misinformation about the election and its violent aftermath, and allowed its most prominent employees to act like political advisers.
But to have Hannity then turn around and claim journalistic privilege? Now that’s chutzpah.
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