These are interesting and often terrifying times for our First Amendment values of free speech and free press. During the 2016 election, a major element of the Donald Trump campaign was scorn for press and protesters. This was coupled with verbal, and even some physical, assaults by Trump supporters on members of the press — penned and terrified while covering campaign rallies. Trump the businessman had been highly litigious, including filing libel suits against his critics. As the Electronic Frontier Foundation has documented extensively, Trump the candidate made hostility against the press a major feature of his campaign, calling them “dishonest,” “scum,” “sleaze,” and “horrible people.” He boasted at a Fort Worth rally in February 2016 that “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.” At another rally in Kentucky, when heckled by protesters, he told the crowd to “get ‘em out of here,” whereupon the protesters alleged that they were assaulted by the crowd.
Now that Trump the Candidate has become Trump the President, where does the First Amendment stand? Are we suffering a crisis of the First Amendment, or a golden age of protest and resistance? Although it will take time to process both what has happened and what the legacy of this administration will be, I want to offer four preliminary observations about free speech and free press under the new administration and their implications for the future of First Amendment rights and values. My ultimate conclusion, however, is that the First Amendment is under assault, and it faces a set of novel challenges from the new administration, as well as the political climate that propelled it to surprising electoral success. This strain on civil liberties is not entirely a bad thing, however. The First Amendment is always under assault from one direction or another in times of social and technological change and of turbulent politics, and we are being reminded, yet again, that the value of constitutional rights comes in their exercise as much as in their protection on paper.
So, what is the lay of the land? What does freedom of speech look like in the new administration? At the basic level, the law has not changed, but there have been a vast number of events, large and small, that have raised First Amendment issues. Four are particularly worthy of note.
The rough treatment of press and protesters spawned lawsuits. Remember those protesters that got roughed up by Trump supporters at the rally? In April, 2017, a federal district judge in Kentucky ruled that they had stated a claim against Trump for incitement of a riot, and that the Supreme Court’s famously protective Brandenburg test did not protect Trump. In other words, they had stated a claim that the president had actually incited violence that was imminent and likely while campaigning — an unprecedented ruling.
It is hard to talk about free speech in the Trump administration without discussing his use of Twitter. On April 11, 2017, the date of the conference for this symposium, for example, he tweeted “North Korea is looking for trouble. If China decides to help, that would be great. If not, we will solve the problem without them! U.S.A.” Trump’s tweets have also included unprecedented attacks by a sitting president on the institutions of the free press and an independent judiciary. For example, after district judge James Robart stayed Trump’s immigration ban, Trump tweeted that Robart, who had been nominated by President George W. Bush and confirmed by the Senate, was a “so-called judge.” Trump offered further that “What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.”1
Trump has also called the press “the enemy of the American people.” On February 16, 2017, he tweeted that “[t]he FAKE NEWS media (failing @nytimes, @CNN, @NBCnews, and many more) is not my enemy, it is the enemy of the American people. SICK!” In a move that was surprising to many, former President George W. Bush responded that “[w]e need an independent media to hold people like me to account. Power can be very addictive and it can be corrosive, and it’s important for the media to call to account people who abuse their power.” Bush’s position is hardly a radical one; it is no more than an orthodox defense of the role of a critical press in a functioning democracy, but it shows how quickly, and how much, the level of presidential discourse has shifted in the new administration.
III. “Alternative Facts”
One of the most surreal episodes in the new administration’s relationship with the press is the genesis of his so-called “alternative facts.” This concept has been offered as a justification for the administration’s looseness with the truth that seems to represent a rejection of truth in favor of opinion that is at odds with traditional notions of public debate. Interestingly, the press have responded to these suggestions with new ways of reporting on executive branch falsity with, for example, headlines like the New York Times on March 4, 2017: “Trump, Offering No Evidence, Says Obama Tapped His Phones”; or the Guardian on Jan. 22, 2017: “Trump’s inauguration crowd: Sean Spicer’s claims versus the evidence.” White House spokespeople must remain distinct from employees of Orwell’s Ministry of Truth. One of the principal justifications for the protection of free speech and a free press in our democracy is that these fundamental constitutional rights allow the truth to prevail. If truth were to be relegated by the government to whatever assertions are convenient, democratic self-government as we have known it would be under serious threat.
IV. Other issues
Beyond incitement, Twitter, and “alternative facts,” there are many other issues involving free speech that the first 100 days of the new administration has thrown up. Space constraints prevent me from going into them in any detail, but it is worth noting, in passing, the proliferation of “fake” Twitter accounts, ostensibly by government bureaucrats in departments of customs and immigration, the National Park Service, and the Environmental Protection Agency that have criticized the new administration’s efforts to deny climate change and dismantle social services and the modern administrative state. The new administration sought unsuccessfully to have Twitter corporation unmask the “Alt Immigration @ALT_uscis” Twitter account.
These actions by the new administration have resulted in substantial political resistance. Center- and left-leaning media outlets like the New York Times and the Guardian have also reported a substantial boost in both subscriptions and outright donations. The Washington Post, now owned by Trump critic Jeff Bezos, even changed its website banner motto to “Democracy Dies in Darkness.” These are important developments and ones we should not overlook, given the traditional importance reserved for a free, critical, and independent press in a democracy.2 They seem to represent a commitment by a significant chunk of society to holding the government to account and to being willing to spend money in order to do so. At a time when the financial model of print journalism is under threat from seismic changes in the advertising industry occasioned by the Internet, this may be the single most encouraging development of the past six months for those who care about the vitality of an independent press focused on hard news.
What, then, should we make of these developments? Of course, it is dangerous to make predictions on incomplete evidence, but I think we can draw four preliminary conclusions about the First Amendment from the experiences of the last six months.
First, a President cannot do much to formally affect the law of the First Amendment. The basic principle of Marbury v. Madison is that the president is not above the Constitution. Acting on his own, he or she cannot pretextually lock up critics or change the legal doctrine protecting dissent and expression in democratic politics. Nor, of course, can the president, or a compliant Congress, roll the libel laws back below the constitutional floor set in 1964 by New York Times v. Sullivan. Nevertheless, the power of the office does give the president the ability to undermine some of the institutions upon which that legal doctrine rests, and we have seen attempts to do this with attacks on the press, which the president has called “the enemy of the people,” and on an independent judiciary, which he has called “activist” and “political.” Moreover, the very notion of “fake news” and “alternative facts” represents something of an attack on the very notion of truth itself. Thus, while the president cannot formally damage the First Amendment, he or she is in a position to damage the institutions upon which “uninhibited, robust, and wide-open” public debate depends.3
This leads me to my second conclusion — that when it comes to the exercise of First Amendment rights, institutions and social norms matter a great deal. The six months since the election have revealed that institutions matter perhaps even more than we have appreciated in the past. We simply cannot have robust democratic debate of the sort we may have taken for granted without institutions and social norms that support it. By “institutions,” I mean institutions like a free, diverse, and fearless press with access to (for example) White House briefings and confidential sources. Or institutions like an independent judiciary that are not demeaned and attacked by elected officials on Twitter. By “social norms,” I mean things like a commitment in our society to truth versus “alternative facts,” in which facts are molded to suit opinion, ideology, or political expediency. I also mean a deep and abiding social commitment to dissent for its own sake and to holding elected officials to account, as a matter of course, even if we might have voted for them or otherwise support their policies. These institutions and social norms matter a great deal, and I think it is fair to say that we cannot have truly free expression without them, regardless of what the law says.
My third conclusion is that the events of the past six months should remind us that constitutional law is fundamentally conservative and that this is a good thing. Many people associate constitutional law with social progress, looking of course at the First Amendment, but also at the protections for civil rights, gender equality, and the protection of the home under the Fourth Amendment. The law has certainly recognized these rights, and it will doubtless recognize others in the future. But, my point is that once these rights have been recognized by constitutional law, they are very hard to take away. Constitutional law restricts the power of presidents; legislatures police to limit these rights by placing them, in a sense, beyond ordinary politics. First Amendment rights, like others, are conserved, protected, and shielded by constitutional law and, in that sense, they are conservative rights, albeit “conservative” in a way that is very different from how that term gets used in daily political debate, Supreme Court nominations, or the cable-television news cycle.
Fourth, and finally, the recent political upheaval should remind us that civil liberties are like muscles — when we do not use them, they atrophy. Maybe the silver lining of the past six months is that, while painful from a free-speech perspective, it may have been the pain of a return to the gym after a long and frequently sedentary layoff. We may have taken these rights for granted and not used them as much. Now that we are using them again, they might be a bit stiff and sore. But they are moving again. We need to exercise our bodies in order to keep them healthy and vital. It turns out we need to exercise our civil liberties as well, not just to keep them vital, but also to preserve the democratic body politic upon which we depend.
Over the next few months and years, regardless of our politics, we will find out how out of shape we have let ourselves get.
* Thomas & Karole Green Professor of Law, Washington University in St. Louis.
1 If one of my constitutional law students were to ask me that question, I think the answer would be “the rule of law and an independent judiciary applying the constitution. Marbury v. Madison.” As the great Chief Justice John Marshall explained in that iconic case, “It is emphatically . . . the duty of the judicial department to say what the law is,” including on questions of whether the President has exceeded his constitutional powers. There is no more basic statement of the rule of law under the American Constitution. Marbury v. Madison, 5 U.S. 137, 177 (1803).
2 New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
3 See id.