Can the First Amendment survive President Donald Trump?

November 21, 2016

OPINION by PETER SCHEER

Freedom of speech is as fragile as it is precious. President-elect Donald Trump likes to talk about a future in which America will be great “again.” Freedom of speech—in particular, the right to criticize government without having to whisper and look over one’s shoulder—is why, frankly, America is great now.

Freedom of speech derives from a mere handful of words inscribed on aged parchment  (“Congress shall make no law . . .”) whose meaning is periodically exhumed by a shifting majority of Supreme Court justices holding forth in dense, complicated opinions from which are deduced limitations–limitations on the government’s power over citizens.

The First Amendment does not have an army to enforce these limitations. They work—that is, they restrain government—because the people and their elected officials consent to them, even though the whole idea of freedom of speech is fundamentally anti-democratic. Freedom of speech again and again has been applied to block actions that enjoy majority support, either because they have been enacted into law by a legislative majority or because they reflect policy choices of a popularly-elected chief executive.

The people have come to accept the First Amendment’s anti-democratic veto over popular policies that restrict dissident speech. They do so because they understand intuitively that giving voice to minority viewpoints is a crucial, distinguishing feature of the American experiment, and because they understand that someday they too may be part of an unpopular minority in need of legal protection to convey their message to the general public.

Still, the First Amendment is fragile. The public acceptance of the rules, traditions and understandings constituting the “right” of free speech can be shoved aside by public officials determined to assert their power and will through suppression of speech. America experienced this big time during the anti-Communist hysteria of the 1950s, and again during Richard Nixon’s turbulent presidency in the late 1960s and early 70s.

And it can happen again. Make no mistake, Trump has the potential to do grave harm to freedom of speech. I say “potential” because he may understand, at some level, that being President is different from being a presidential candidate, and even more different from being a business tycoon whose modus operandi can be fairly described as dictatorial. One can hope (though I wouldn’t bet on it).

Trump’s assault on freedom of speech, should it happen, will not come in the rather trivial forms that some journalists and First Amendment advocates have focused on recently. For example, his post-election denunciations, via Twitter, of the “failing New York Times,” triggered by specific news stories that he doesn’t like. Or his verbal attacks on journalists by name.

Although unorthodox, these antics don’t threaten First Amendment rights. Indeed, the very public and unfiltered airing of government-media tensions can be refreshing, and Trump’s direct access to the public, through 140-character tweets, poses a healthy challenge to the media establishment. Also, these provocations are likely to stiffen spines in the journalism world, which is a good thing. The press is at its best when its relationship with the government in power is overtly adversarial.

Nor is Trump likely to trample on the First Amendment through high-profile confrontations, like issuing grand jury subpoenas to reporters, or suing to enjoin publication of news stories containing classified information, or using the Espionage Act against journalists. These steps would be too public, too controversial, and likely to galvanize public support for the press and against Trump. Nixon comes to mind again.

No, the greater risk to the First Amendment under Trump is political corruption of the federal regulatory system.

To get back at the Washington Post, the Trump administration can go after its owner, Jeff Bezos. To pressure Bezos, the federal bureaucracy can go after Amazon. How? Amazon every day has a thousand regulatory interactions with federal agencies from the SEC to the Department of Labor to the Federal Trade Commission. These are all pressure points that can be squeezed to stall Amazon’s growth and innovation.

To get back at the New York Times, the Trump administration can go after its biggest shareholder, Mexican telecom magnate Carlos Slim. To get back at CNN, the Trump administration can have antitrust regulators in the Justice Department and FTC put the brakes on the proposed merger of Time-Warner (CNN’s owner) and AT&T.  And the same pain can be visited upon scores of other US firms, not limited to media, which, having criticized Trump’s policies, find themselves in the government’s crosshairs.

Political corruption of this kind is a state of lawlessness in which enemies are crushed and friends rewarded. It is a form of  corruption that is very hard to resist or expose because of the complexity of regulatory actions and the broad discretion that Congress has given to regulators. The upshot is fear, widespread fear of the consequences of speaking one’s mind. And this fear produces self-censorship on a vast scale.

As the president-elect prepares to become the president, this is the scenario that I worry most about.

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. The views expressed here do not necessarily reflect the opinions of the FAC Board of Directors.