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A new cultural and constitutional paradigm: The unending First Amendment battles in Trumpland — First Amendment News 389

Trump is like a phantom lingering in the cultural haze only to reappear as a trickster pounding at the constitutional door.
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Donald Trump’s 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 Trump’s 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 Trump’s presidency. (See FIRE’s “So to Speak” podcast interview with Zick).

The First Amendment in the Trump Era by Timothy Zick

Related 

For all its merit, however, Zick’s 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 won’t be much of a defense in an actual court.”

Trump’s lawyers continue to fly a different conceptual flag. For example, consider their First Amendment challenges to the Justice Department’s request for a protective non-disclosure order in the 2020 election case. In the Response in Opposition to Government’s 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 Trump’s First Amendment rights.”

Opposing views on Trump and free speech: Abridgment or abuse?

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

“In 2018, before the 2020 election and before Trump’s 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,” Trump’s lawyers write in the filing. “Worse, it does so against its administration’s 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 NBC’s “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)
WATCH: CNN’s Jim Acosta Roasts Trump And His Defenders With Brutal Clip Mashup of First Amendment Attacks

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 Trump’s 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 Trump’s $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 Trump’s First Amendment rights.
WATCH: Rudy Giuliani SNAPS, LOSES HIS MIND on air over Trump indictment

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 against Rudy 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:
WATCH: Is the Big Lie Protected Speech?

How First Amendment auditors are changing policing, helped by YouTube

Robert Klemko, “Cop-watchers are now YouTube celebrities. They’ve 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 he posted 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 Floyd’s murder at the hands of police in Minneapolis in 2020.
WATCH: How First Amendment auditors became YouTube stars

Free speech cases in the news

2022-2023 SCOTUS term: Free expression and related cases

Cases decided

  • 303 Creative LLC v. Elenis (6-3 per Gorsuch for the majority and Sotomayor for the dissent: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.)
  • Counterman v. Colorado (held: First Amendment violated — 4 votes per Kagan with Sotomayor concurring in part joined by Gorsuch in part. Thomas filed a dissent and Barrett also filed a dissent, in which Thomas joined). (“In this context, a recklessness standard — i.e., a showing that a person ‘consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another’ . . . — is the appropriate mens rea. Requiring purpose or knowledge would make it harder for States to counter true threats — with diminished returns for protected expression. The State prosecuted Counterman in accordance with an objective standard and did not have to show any awareness on Counterman’s part of his statements’ threatening character. That is a violation of the First Amendment.”)
  • Jack Daniel’s Properties, Inc. v. VIP Products LLC (9-0: held — When a defendant in a trademark suit uses the mark as a designation of source for its own goods or services — i.e., as a trademark — the threshold Rogers test for trademark infringement claims challenging so-called expressive works, see Rogers v. Grimaldi, does not apply, and the Lanham Act’s exclusion from liability for “[a]ny non-commercial use of a mark” does not shield parody, criticism, or commentary from a claim of trademark dilution.) (This is from footnote 1 of the majority opinion: “To be clear, when we refer to ‘the Rogers threshold test,’ we mean any threshold First Amendment filter.” Justice Kagan wrote the majority. Justice Sotomayor filed a concurring opinion, in which Justice Alito joined. Justice Gorsuch filed a concurring opinion, in which Justices Thomas and Barrett joined.)
  • United States v. Hansen (7-2: Title 8 U.S.C. § 1324(a)(1)(A)(iv) — which criminalizes “encouraging or inducing” illegal immigration — forbids only the purposeful solicitation and facilitation of specific acts known to violate federal law and is not unconstitutionally overbroad.)

Review granted

Cert. granted and case remanded

  • U.S. v. Hernandez-Calvillo (cert. granted, judgment vacated, and case remanded to the U.S. Court of Appeals for the 10th Circuit for further consideration in light of United States v. Hansen).
  • Klein v. Oregon Bureau of Labor and Industries (cert. granted, judgment vacated, and case remanded to the Court of Appeals of Oregon for further consideration in light of 303 Creative LLC v. Elenis).

Pending petitions

State action

Qualified immunity

Immunity under Foreign Sovereign Immunities Act 

Liability Anti-Terrorism Act

  • Twitter v. Taamneh (held, 9-0 per Thomas, J.: SCOTUS blog: “Plaintiffs’ allegations that the social-media-company defendants aided and abetted ISIS in its terrorist attack on a nightclub in Istanbul, Turkey fail to state a claim under 18 U.S.C. § 2333(d)(2).”)

Section 230 immunity

  • Gonzalez v. Google (held, 9-0, per curiam, SCOTUSblog: “The 9th Circuit’s judgment — which held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act — is vacated, and the case is remanded for reconsideration in light of the court’s decision in Twitter, Inc. v. Taamneh.”)

Review denied

Previous FAN

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

This article is part of First 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 article’s author(s) and may not reflect the opinions of FIRE or of Mr. Collins.

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