It's now clear that President Trump poses unprecedented threats to freedoms of speech and press. Take Care and Protect Democracy have teamed up to host a forum in which leading scholars consider how we can use the law (and litigation) to protect against Trump's use of the "bully podium." This is the latest entry in that forum.
By Mark Joseph Stern, Slate Magazine
Following a recent address championing free speech on college campuses, Attorney General Jeff Sessions was asked what he made of President Donald Trump’s crusade against the NFL. For weeks, Trump has urged the NFL to fire “disgraceful” players who kneel during the national anthem in protest of police brutality. Sessions, himself a notorious censor of speech he dislikes, responded defensively: “The president has free speech rights, too,” he proclaimed—as though Trump had simply been speaking as a civilian and not the nation’s chief executive.
Like most attempts to justify Trump’s alarming use of the bully pulpit, Sessions’ answer ignores the fact that presidential speech has far greater consequences than almost any other expression. Trump is not some angry citizen blowing off steam; he is the President of the United States, and he routinely uses his office to suppress the speech of minorities who contest their own oppression. From the NFL to Puerto Rico to the impending ban on transgender troops, Trump uses his “free speech rights” to bully minority communities into silence.
Most of the time, his targets can do little more than ignore him and hope his crusade does not succeed. But when he uses the government to stifle expression, his victims may be able to fight back by asserting free speech rights of their own.
Trump attacks plenty of people for their speech, but he clearly prefers to go after minorities. It is no coincidence that the man who began the NFL protests, Colin Kaepernick—as well as a majority of the players who followed suit—are people of color. Trump is apparently irked to see black people challenge anything, let alone the brutality and racism that he openly favors. This trait is common to his administration; recall former Press Secretary Sean Spicer’s snide rebuke of black journalist April Ryan after she questioned his veracity.
But Trump has learned how to deploy this noxious instinct in a strategic manner. According to the New York Times, the president acknowledges in private that “he is engaged in a culture war on behalf of his white, working class base.” He understands that, thanks in part to his diatribes, many Americans now view the NFL debate as a racial issue—black players versus a white president. (As Press Secretary Sarah Huckabee Sanders explained to April Ryan with accidental candor, “it’s pretty black and white.”)
The president’s desire to punish these players for their political expression does not, by itself, conflict with the First Amendment. Trump can only urge the NFL to fire them; the government has no authority to silence them. His actions betray free speech values; less clear is if and when they transgress the law.
Predictably, however, some state actors have already used the spirit of Trump’s message to impose genuine censorship on dissenters. A public high school principal has already declared that student athletes will now be barred from kneeling during the national anthem. His almost comically unconstitutional diktat neatly illustrates the threat of writing off Trump’s comments as mere free speech. A presidential endorsement of censorship is liable to trickle down and chill constitutionally protected minority expression.
Puerto Rico provides another vivid example of Trump’s censorial use of his office. When San Juan Mayor Carmen Yulín Cruz criticized the federal government for its horrifically inadequate response to Hurricane Maria, Trump lashed out against her on Twitter. Cruz’s comments were not actually personal or especially sharp; she was mostly attempting to draw more attention to a looming humanitarian catastrophe. But Trump took them personally, retorting on Twitter that the “nasty” Cruz had “poor leadership ability.” He then broadened his criticism to pretty much everybody on the island, insisting that Puerto Ricans “want everything to be done for them when it should be a community effort.”
In other words, Trump was furious that any Puerto Rican would dare complain that his negligent government was allowing people to die. His response was thoroughly unsurprising. As my Slate colleague Jamelle Bouie wrote at the time: “Trump is impulsive and easily piqued, especially when criticized by women or nonwhites. It’s why he lashed out at Khizr Khan and his family during the presidential election, or why he reaches for gendered insults when addressing female critics.” When Puerto Ricans protested their needless suffering, Trump replied by attempting to bludgeon them into silence through “racial demagoguery.” Sadly, the still-suffering residents of the island have little recourse; they can only continue to speak out, and hope that the rest of us listen.
But some victims of Trump’s censorship and speech retaliation do have legal recourse. When Trump impulsively tweeted in July that he would ban transgender military service, a number of trans troops chose to challenge the policy in court. Transgender individuals have been permitted to serve openly in the U.S. military since June 2016; Trump’s ban would penalize them for expressing their gender identity. A lawsuit filed by Lambda Legal and OutServe-SLDN on behalf of several trans troop claims that this punishment would violate their First Amendment right to free speech and expressive association.
It’s a strong argument. Jesse Ehrenfeld, one of the country’s foremost experts on both transgender health care and military service, has pointed out that expression plays a key role in gender transition. Many trans troops who might be discharged under Trump’s policy are effectively being punished for expressing themselves in accordance with their gender identity, speaking in support of transgender rights, and associating with other transgender people. It seems doubtful that the government can penalize troops for exercising their core First Amendment rights—chilling advocacy for transgender equality and censoring expression at the heart of a highly politicized issue. Notably, Trump’s implementation memo explicitly targets “openly transgender individuals.” (Emphasis mine.) This policy isn’t just discrimination. It’s content-based censorship.
The president’s bullying of black athletes, Puerto Ricans, and transgender troops cannot be written off as little more than an exercise in free speech. It is, instead, a concerted effort to intimidate minority communities into silence, burdening their freedom of speech through abuse of presidential powers. The Constitution may sometimes function as a shield against Trump’s attacks, but it cannot always deflect his efforts to stamp out dissent. Americans should refuse to tolerate Trump’s attempts to silence critics through both government decrees and tweets. Whether formal or indirect, the president’s suppression of expression strikes at the heart of the First Amendment principles that his administration falsely purports to defend.