Litman: Hannity had an unholy alliance with Trump. The 1st Amendment still protects him

Fox News star Sean Hannity is an improbable and undeserving poster child for 1st Amendment protections, but that’s where things stand in our topsy-turvy Trump-driven political life.

As a confidante, counselor and enabler of the former president, as well as one of Fox’s highest-rated prime time commentators, Hannity presents in many ways the antithesis of the argument for 1st Amendment protections. He once told the New York Times, “I never claimed to be a journalist.” Nevertheless, he should be treated as one, not for his own sake but that of his more legitimate media colleagues.

The House committee investigating the events of Jan. 6 sent a letter to Hannity last week asking for his cooperation with its investigation. That drew return fire from Hannity’s lawyer that the request “would raise serious constitutional issues including 1st Amendment concerns regarding freedom of the press.”

Then over the weekend, former Trump Press Secretary Stephanie Grisham, who had testified to the Jan. 6 committee days earlier, told the Washington Post about a disquieting alliance between Hannity and the 45th president.

According to Grisham, Hannity continually weighed in with Trump — offering policy advice the president often elevated over the opinions of his White House advisers. And Hannity wasn’t the only Fox News personality with special White House privileges. Laura Ingraham, Lou Dobbs and Jeanine Pirro enjoyed similar access and influence, which staffers learned to groaningly accept from the cable-TV addicted Trump.

Particularly troubling is Hannity’s apparent role in the events of Jan. 6, and his mendacious on-air commentary during the same critical stretch. The House committee has texts from Hannity to Trump Chief of Staff Mark Meadows demonstrating his regular contact with the White House and the president himself.

As the letter to Hannity from Jan. 6 committee chairman Rep. Bennie Thompson (D-Miss.) states, the texts strongly suggest advance knowledge of the insurrection. It details damage-control discussions with Trump after the debacle. And during the Capitol attack, Hannity called on Meadows to tell Trump to call off the rioters.

All the while, however, on “The Sean Hannity Show,” the host was suggesting a false parallel between the insurrection and Black Lives Matterdemonstrations of the previous summer — “Where’s that committee, congressman? I’d like to see that committee” — and arguing that the rioters had been largely peaceful.

This pattern of conduct turns on its head the arms-length adversarial model of a vigilant press holding the government to account. In the behind-the-scenes texts, Hannity sounds more like a Steve Bannon than a Walter Cronkite.

Indeed, everything about Hannity’s furtive insider role undermines, rather than advances, the principles that justify 1st Amendment protection for journalists.

The Supreme Court explained the justification in the canonical case of New York Times vs. Sullivan, which established an extra margin of protection for the media when reporters are accused of defamation by public figures — in essence, even if journalists publish or broadcast untruths, they can only be sued for defamation if they published the errors knowingly, or with reckless disregard for the truth.

That leeway in journalism is justified because it’s better to give the press a wide berth than to suppress stories that might advance self-government or the truth.

The Sullivan decision quoted Judge Learned Hand: The 1st Amendment “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many, this is, and always will be, folly, but we have staked upon it our all.”

As slimy as Hannity’s double duty appears — on Fox News and as a presidential buddy — schmoozing government officials is one thing that journalists do. They charm and cajole sources to shake loose information in a dance well understood by both sides. Getting inside information, having direct access in order to ferret out information, that’s the coin of the realm.

Hannity’s schmoozing had perverse motivations; he was hardly intent on afflicting the powerful and holding government to account. Instead, he was a toady, cozying up to the administration and working to advance its political interests, including Trump’s rank anti-democratic efforts to steal the election from President Biden.

Hannity subordinated facts to those interests, going on TV nightly to provide viewers an account of events that was, to say the least, tilted in Trump’s favor.

In a perfect world of unerring judges, perhaps Hannity’s claim to a 1st Amendment shield could be rejected. But in the real world, leaving it to courts to strip away 1st Amendment protections based on the psychoanalyzing of journalists’ true motivations would cow the press in general and erode society’s right to know.

In the case of Fox News communiques with the White House, it is a poignant irony that the demands of a vigorous 1st Amendment dictate protection even for a sycophantic rascal like Hannity.

@HarryLitman