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.
As usual, questions of freedom of speech continue to confound crude distinctions between left and right. The President and his defenders are outraged that athletes can (in their view) express disrespect for our flag and national heritage by taking a knee instead of standing—yet they pummel liberal activists for failing to understand basic First Amendment values when students express indignation about speakers who would publicly disrespect trans or minority peers. The valences are of course reversed for the left. All of which illustrates the political difficulties posed by questions of freedom of speech.
These difficulties are nowhere more apparent than when the government is itself speaking. Contemporary doctrine is clear that First Amendment restrictions do not ordinarily apply to what our doctrine labels “government speech”:
When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. . . .That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on governmentspeech. Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas. . . .
Were the Free Speech Clause interpreted otherwise, government would not work. How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? . . .
[A]s a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.
Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S.Ct. 2235, 2245-46 (2015).
The government speech doctrine bestrides our President’s growing penchant for attacking citizens who express themselves. Just this week Trump called upon NFL owners “to get that son of a bitch off the field right now” if any athlete were audacious enough to refuse to stand with hand over heart for our national anthem. When our President speaks in this fashion, it is constitutionally as if the government were itself speaking. So we must ask whether there is any constitutional difference between government creating “a successful recycling program” and government forcefully condemning the speech of private citizens.
We can certainly imagine a set of facts in which there is an important difference. If the President’s speech is designed to bring the force of law to bear to suppress citizen speech, he is certainly violating the First Amendment. Here the relevant case is Bantam Books, Inc. v. Rhode Island, 372 U.S. 58 (1963), which concerned the “RhodeIsland Commission to Encourage Morality in Youth.” That commission was charged with educating “the public concerning” obscene publications and recommending “to the Attorney General prosecution of purveyors of obscenity.” Even though the Commission formally did no more than engage in government speech that “simply exhorts booksellers and advises them of their legal rights,” the Court had no difficulty enjoining the Commission’s activities because “the record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed ‘objectionable’ and succeeded in its aim.” The Commission “was in fact a scheme of state censorship effectuated by extralegal sanctions.”
The same, we might observe, can be said about Donald Trump. He has also engaged in an official verbal campaign designed to suppress speech that offends him. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). Whereas the work of the Rhode Island Commission was aimed at obscenity, a category of expression without legal protection, Trump’s vitriol is directed at core political speech. It is blatantly viewpoint discriminatory (an especially extreme form of First Amendment violation). Trump’s allies have already begun organizing boycotts (“Turn off the NFL”) to give teeth to Trump’s intemperate attacks.
It was crucial to Bantam Books, however, that the RhodeIsland Commission’s threats reinforced by ties to the ordinary law enforcement institutions of the State. What booksellers feared was the Commission’s influence in causing the State to initiate criminal prosecutions. (For this reason, Bantam Books turns as much on the Commission’s absence of procedures as on its substantive mission.) For all Trump’s braggadocio, there is no indication that he intends to utilize the law enforcement apparatus of the federal government to harass or sanction NFL players who are taking a knee. Were such evidence adduced, Trump’s threats would be on all fours with the Commission in Bantam Books, and he would have violated the First Amendment. The same would be true if Trump intended to activate any part of the vast civil and regulatory infrastructure of the federal government to retaliate against NFL players (or their employers) for their protests.
Suppose it can be shown that Trump, using the considerable authority of his office, conspired with private groups to promote economic boycotts to compel NFL owners to sanction NFL players who take the knee. In such a case, I believe, Trump also stands in the shoes of the Rhode Island Commission. The First Amendment prohibits the suppression of speech under color of state authority. It therefore applies to “a case where one who is in possession of state power uses that power to the doing of the wrongs which the [First] Amendment forbids, even although the consummation of the wrong may not be within the powers possessed, if the commission of the wrong itself is rendered possible or is efficiently aided by the state authority lodged in the wrongdoer.” Home Tel & Tel Co. v. Los Angeles, 227 U.S. 228, 287 (1913). In such a case “inquiry concerning whether the state has authorized the wrong is irrelevant, and the Federal judicial power is competent to afford redress for the wrong by dealing with the officer and the result of his exertion of power.” Id. Thus Trump cannot meet in the Oval Office (or anywhere else) with private organizations and lend the leadership and imprimatur of his official authority to a coordinated, nominally “private” effort to inflict economic harm on the NFL in retaliation for speech that he finds contemptible or unpatriotic.
We must sharply distinguish these circumstances, however, from those situations in which a sitting President does nothing more than verbally attack the speech of private citizens, who consequently suffer adverse consequences at the hands of third parties not conspiring with the President. If a President were to condemn in harsh and dismissive terms the publications of scientists advancing the view that nicotine is unrelated to cancer, and if these scientists consequently lost business possibilities or private foundation grants or consulting opportunities, it would be exceedingly difficult to argue that First Amendment protections come into play. The President’s expressions likely would be classified as government speech, nothing more.
It follows that whether Trump has run afoul of the First Amendment will very much depend upon the facts alleged in any suit against him. Can it be shown that Trump is bringing to bear the law enforcement or regulatory apparatus of the United States? Can it be shown that he is using the prerogatives of his office to conspire with private parties to suppress speech? If the answer to either question is “yes,” then the President has violated the Constitution.
One further legal point comes to mind. Suppose it can be shown that Trump is not using government operatives to chill speech, and that he is not in fact conspiring with private parties to coerce speakers, but that it can be demonstrated that private speakers “reasonably” believe that Trump is doing these things? See Elonis v. United States, 135 S. Ct. 2001 (2015). Because it is so important to prevent chilling the expression of citizens, would a violation of the First Amendment lie in the reasonable beliefs of a citizen that the President is breaking the law?
To answer this question, a court would have to balance the chilling effects of presidential speech on private speakers against the chilling effects of judicial review on presidential expression. In the absence of “true threats,” Virginia v. Black, 538 U.S. 343 (2003), as distinct from “rhetorical hyperbole,” Old Dominion Branch No. 496 v. Austin, 418 U.S. 264, 285 (1974), I would put money on the proposition that courts will bend over backwards to stay clear of the responsibility of supervising the political expression of official actors.
There is a deeper constitutional point, however, than the question of what courts will or will not enforce. Our president does not swear to avoid judicial findings of unconstitutionality. He swears to “preserve, protect and defend the Constitution of the United States.” A fundamental axiom of the Constitution is democratic self-government. Democratic self-government is a difficult and complicated concept, but at its root lies the idea of the peaceful self-determination of “We the people.”
Compacted within the phrase “We the people” lie many fundamental principles. “We” form a single “people,” which is to say that we together constitute a single nation through a common body politic. Our body politic is indivisible because it can be severed only by war. Although we will disagree about what we think our nation should so, this disagreement can never be allowed to threaten the unity of our body politic, because that would endanger our compact to create a “We the people.” We pledge to maintain the peaceful integrity of our body politic by settling our differences through talking to one another, through forming public opinion, and through creating institutions that enable our public opinion to shape the course of government decision-making. By taking his oath, the President commits himself to these basic propositions.
Trump’s intemperate attacks on political speech he dislikes are inconsistent with this vision of democratic self-government. To silence political opponents is to excommunicate them from the demos, which is to rupture our common body politic. It is striking that Trump’s recurring political instinct is to appeal to his base by constructing enemies. The press is his enemy; NFL players are his enemy; Hillary Clinton is his enemy, and so on.
The great German political theorist Carl Schmitt believed that politics was founded on the friend/enemy distinction. He argued that we form political entities when our survival is at stake in the face of existential threats. We can learn from Schmitt that the creation of enemies is inconsistent with the unity of the American body politic. Through his invocation of the friend/enemy distinction, through his hostility to speech he finds disagreeable, Trump reveals the ambition to form a political entity that is less than the entire American public. He is a President who continuously savages the hard-earned and necessary integrity of “We the people.”
It requires grace and good sense to create a polity in which persons can disagree and yet nevertheless remain faithful to a common commitment to live together. It is the obligation of a President to strive for such a polity. It is Trump’s recurring failure to meet that obligation which causes such shock at his lack of “presidential” instincts. When people observe that Trump seeks to divide the country rather than bring it together; when they complain about his inability to empathize with the suffering citizens of Puerto Rico or with oppressed African Americans; when they are nauseated by his cruel and petty treatment of political rivals; when they are stunned by his unceasing narcissism; they are in effect marveling at Trump’s utter incomprehension of his deeper responsibility to “preserve, protect and defend” the national unity that makes possible our constitutional government.
Of course no court will enforce that responsibility. But in the eyes of history Trump’s hostility to this fundamental obligation will constitute his greatest constitutional failure.