A new cultural and constitutional paradigm: The unending First … – Foundation for Individual Rights in Education

Donald Trumps impact on the First Amendment

In so many different respects, it is hard to think of any other single person whose actions have had such a significant effect on the public and courts' view of the First Amendment than Donald Trump. On the one hand, it has been argued that Trumps many defamation actions against others are prime examples of the need for First Amendment protection. On the other hand, some now maintain that recent criminal and civil actions against Trump exemplify the need for First Amendment protection. Either or both ways, Trump is continuing to have a major impact on the law and culture of free speech in America. So much so that an entire book and a big one at that! could be written about the unending First Amendment battles connected in one way or another to our former president.

Wait a minute! Now that I think of it, such a book has already been written in 2018 by professor Timothy Zick, titled, The First Amendment in the Trump Era. That book cataloged and analyzed the various First Amendment conflicts that occurred during Trumps presidency.(See FIREs So to Speak podcast interview with Zick).

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For all its merit, however, Zicks book was published five years ago which in Trump time is a long while. Hell, since then, Robert Corn-Revere published The Retaliator in Chief: The Case Against Donald J. Trump, in FAN 202.2 on March 4, 2019, and Knight First Amendment Institute v. Trump was litigated in the Second Circuit and the Supreme Court.

There has been so much more First Amendment cannon fodder since then that professor Zick would do well to consider a sequel albeit with the understanding that it too would likely become dated in just a few years. But the good professor is still in the Trump/free speech game, as evidenced by his recent comments in Politifact: Conflating protected political advocacy with conspiring to commit federal crimes might work to some extent in the court of public opinion, but wont be much of a defense in an actual court.

Trumps lawyers continue to fly a different conceptual flag. For example, consider their First Amendment challenges to the Justice Departments request for a protective non-disclosure order in the 2020 election case. In the Response in Opposition to Governments Motion for a Protective Order for United States v. Trump, the defense argued Instead of hewing to this narrow framework, the government requests the Court restrict all documents produced by the government, regardless of sensitivity, contrary to established law and President Trumps First Amendment rights.

Various parties have weighed in on either side of the issue:

In 2018, before the 2020 election and before Trumps multifront challenge to the results, there was a striking level of bipartisan support for free speech including tolerance for lies. But that bipartisan support changed by 2023. Thomas B. Edsall, The New York Times (Aug. 2)

In a trial about First Amendment rights, the government seeks to restrict First Amendment rights, Trumps lawyers write in the filing. Worse, it does so against its administrations primary political opponent, during an election season in which the administration, prominent party members, and media allies have campaigned on the indictment and proliferated its false allegations. Brittany Bernstein, National Review (Aug. 2)

Even assuming that Smith can prove Trump lied, there would still be constitutional barriers to criminalizing his false statements. Jonathan Turley, The Hill (Aug. 5)

Compare those sentiments to these:

Our Constitution is designed to stop people from trying to overthrow elections and trying to overthrow the government, Raskin, a former constitutional law professor, told NBCs Meet the Press. But in any event, there's a whole apparatus of criminal law which is in place to enforce this constitutional principle. That's what Donald Trump is charged with violating. Rep. Jamie Raskin via Ken Tran, USA Today (Aug. 6)

Trump did not just state the false claims; he allegedly used the false claims to engage in a conspiracy to steal the election. There is no First Amendment right to use speech to subvert an election, any more than there is a First Amendment right to use speech to bribe, threaten, or intimidate. Richard Hasen, Slate (Aug. 1)

And this:

Starting roughly in the 1980s, the political valence of free speech arguments has changed, fueled in part by the feminist anti-pornography movement, in part by the movement of the Republican Party in a more libertarian and therefore anti-regulatory direction, in part by concerns about racist and other forms of hate and in part by the growth of what is now labeled political correctness. Frederick Schauer, The New York Times (Aug. 2)

Next, consider the swirl of First Amendment fights that have made recent news in Trumpland. Only a few days ago, a federal district court dismissed Trumps counterclaim in a defamation lawsuit against E. Jean Carroll. (Recall that last year a court awarded $5 million to Ms. Carroll in her sex abuse and defamation case against Trump, and his bid for a retrial was denied.) And late this past July another federal judge dismissed Trumps $475 million defamation suit against CNN. Then last July the Trump Media and Technology Group sued The Washington Post for defamation to the tune of $3.78 million in compensatory and punitive damages.

Furthermore, Steve Brill, the man who brought us Court TV, is urging that the Trump election indictment case be televised: Federal court rules do not allow cameras in any criminal trials. However, no matter which side of this Donald Trump case you may be rooting for, you should want those rules to be suspended so that this trial can be televised live.

On related fronts: John Eastman is busy raising First Amendment defenses in his California Bar discipline case (see FAN issues 385 and 385.1 by Stephen Rohde), though his attorneys are asking that the proceeding be postponed, arguing that their client is concerned that he may be criminally charged by special counsel Jack Smith.

Let us not overlook the former mayor of New York: In his response to a lawsuit filed by two Georgia election workers who said Rudy Giuliani harmed them by falsely alleging they mishandled ballots in the 2020 presidential election, Giuliani has admitted lying. But he says the women suffered no harm and claims that his lies are protected by the First Amendment to the U.S. Constitution. Mr. Giuliani has also been exercising his free speech rights full throttle in his condemnation of special prosecutor Jack Smith for alleged abridgments of Trumps First Amendment rights.

Let us also not forget the Dominion defamation line of cases. As Sam Levine recently reported in an article in The Guardian:

When Dominion settled its closely-watched $787.5m defamation lawsuit against Fox last month, its lawyers made it clear that the company would continue to pursue legal action against those who spread false claims about the company and the 2020 election. The company still has major defamation cases pending againstRudy Giuliani, Sidney Powell, Patrick Byrne, and Mike Lindell all allies of Donald Trump who were some of the most prominent figures that spread election lies involving the voting machine company on television and elsewhere after the 2020 election.

And back in late December 2021, a federal judge rejected the Proud Boys First Amendment defenses in one of the Jan. 6 conspiracy cases.

Related:

Robert Klemko, Cop-watchers are now YouTube celebrities. Theyve changed how police work, The Washington Post (Aug. 7)

By the end of [one] night, [Christopher] Ruff had recorded a half-dozen interactions between police and civilians, some of which heposted on YouTube. Later that night he encountered the same sergeant and unloaded a barrage of profane insults. It was a typical Friday for the 33-year-old, part of his personal crusade to stop what he sees as overstepping, oath-breaking law enforcement. His encounters with police have been viewed more than 65 million times.

With varying degrees of antagonism and legal expertise, the online movement known as cop-watching or First Amendment auditing has swelled in popularity in recent years, capturing the imaginations of millions of Americans who are examining their relationship with policing after George Floyds murder at the hands of police in Minneapolis in 2020.

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FAN 388: 42 women who argued First Amendment free expression cases before the Supreme Court

This article is part ofFirst Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the articles author(s) and may not reflect the opinions of FIRE or of Mr. Collins.

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