April 2017

The 2017 World Press Freedom Index, published by Reporters Without Borders (RSF), shows that violations of the freedom to inform are less and less the prerogative of authoritarian regimes and dictatorships. Once taken for granted, media freedom is proving to be increasingly fragile in democracies as well. In sickening statements, draconian laws, conflicts of interest, and even the use of physical violence, democratic governments are trampling on a freedom that should, in principle, be one of their leading performance indicators. In the span of just a year, the number of countries where the state of the media is considered “good” or “fairly good” has fallen by 2.3%. Countries regarded as model democracies are no exceptions.

The United States’ ranking for press freedom declined in 2017, driven in part by Donald Trump’s attacks on the news media, which also triggered a decline in other democracies. Reporters Without Borders, which compiles the World Press Freedom Index based on its assessment of the legal environment and government threats to journalists, ranked the United States 43rd out of 180 nations. It finished two spots lower than a year ago, ranking just behind Burkina Faso and just ahead of Comoros. “The election of the 45th president of the United States set off a witchhunt against journalists,” the group said in an analysis of its data. “Donald Trump’s repeated diatribes against the Fourth Estate and its representatives — accusing them of being ‘among the most dishonest human beings on earth’ and of deliberately spreading ‘fake news’ — compromise a long US tradition of defending freedom of expression.”

The Federal Communications Commission will vote on—and given its Republican majority, likely pass—the network neutrality proposal during an open meeting May 18. But that will only start what promises to be a lengthy battle for the future of net neutrality.

To truly torpedo the requirements, FCC Chairman Ajit Pai will have to make the case that he’s doing so for good reason. A 1946 law called the Administrative Procedures Act bans federal agencies making “capricious” decisions. The law is meant, in part, to keep regulations from yo-yoing back and forth every time a new party gained control of the White House. The FCC successfully argued in favor of Title II reclassification in federal court in 2016. That effort means Chairman Pai might have to make the case that things had changed enough since then to justify a complete reversal in policy. “That’s a pretty dramatic reversal,” says Marc Martin, chair of communications law at Perkins Coie. “Presuming there’s an appeal, a court may find that arbitrary.”