Can the First Amendment survive President Donald Trump?

November 21, 2016
Peter Scheer

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.

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The left has been attacking the Freedom of Speach for years…welcome to the party in showing some concern. Now how do we deal with the left shutting down free speech?

Rich in MB says:”Now how do we deal with the left shutting down free speech?”

Mole hill into mountain, Exaggerate much?

Dear Mr Kettle,

It is with great sadness, smugness and a little joy that I report to you the following:

Please wear safety glasses the next time you mess with the Exploding Cigar, I would hate to see you lose an eye when your comment blows up in your face…


“smugness” lol, Party endorsements is not a constitutional free speech issue.

Again making molehill into a constitutional mountain.

The 1st A has been under active and continued assault, and squelched at colleges, Univs and public school for years; by the left. Just to remind the author.

Frankly, “America is great”. Yes it is and we people will elect leaders who put America first.

Nonsense. Conjuring scar scenarios that the “helpless” media will face covert retaliation is yet another thinly veiled attempt at undermining the newly elected government.

For a long time, the Drum beat of accusing conservatives with monikers of Racist, Homophobe, rhetoric has been deafening. The harassed and demeaned “silent majority” spoke up in this election.

Do you think that the demand for politically correct speech (for 40+ years) has harmed the 1st Amendment?

Were you concerned about the 1st Amendment when the Free Speech Wall at Cal Poly was threatened because some contributors wrote words not approved by the liberals?

Were you concerned about the 1st Amendment when any discussion presenting opinions different than Obama’s led to attacking the opposition as racists, rather than supporting people’s right to have opinions different than the President?

If not, pull on your big girl panties and give President Elect Trump a chance, before you let your personal panic carry you away.

The strength of the 1st Amendment is that it gives the right to people to safely have and to safely state opinions different than the majority.

Sorry Peter I see no threat to 1st amendment from President Trump. Rather I see a clear and present danger from the left who want to restrict anything they find offensive. If you want to look to the race baiting left organizations who want to label the opposition as hate speech or anti-somethingorother and thereby eliminate opposition to their particular speech.

You do realize you are doing just what you are complaining about? You want the “left’s” speech suppressed, right?

“I see a clear and present danger from the left who want to restrict anything they find offensive.”

Wow perhaps you could try to get them arrested because of the “clear and present danger” danger those words have, oh so scary.

Democracy is messy, get used to it.

isoslo does have somewhat of a point here. If the left-wing extremists were to limit themselves to criticizing right-wing speech and views, there would be no issue. But some do want to get the government involved in suppressing speech THEY deem oppressive or hateful.

The idea of government regulation of speech that “triggers” sensitive people or even offends entire groups of people is one that needs to end. I agree that such speech is not good, but use your own free speech to counter it rather than seeking protection from the government.

Kettle Says to Pot:

“Democracy is messy, get used to it.”

We are…the mess of the Left and their El Trumpo Meltdown is a Beautiful Messy thing that not only are we getting used to, we love to watch.

The only attack on free speech is that of the left attempting to squelch anything that conflicts with their ideology.

Same on both sides, both attempting to “squelch” what they don’t like.

But you can claim it’s only the so-called left if that is what you are into.

OH Yeh!

Yeah? Show me links to republicans rioting, vandalizing, protesting, race-baiting and disrespecting following the ’08 and ’12 campaigns.

The right wing relies more on lies, distortions and half-truths repeated loudly and continuously to drown out the left. That is disrespectful in my view — case in point, “birthers.” They are less likely to engage in protesting or than the lefties. As for race-baiting, the right-wing prefers to use racial smears, overt and subtle.

But they are just as likely to use violence. They are just more likely to use it in different forms — beating people, burning churches — than the rioters on the left.

Now, I know that the people who do this sort of thing are not representative of the majority of those who consider themselves right-wing. But then neither are most of the people on the left represented by violent protesters. The point here is that everyone needs to stop with the broad generalizations because that habit can be used just as effectively by those they oppose and no one wins when that happens.

Here’s my two cents worth of free speech. Don’t waste your breath Peter.

America survived 7.5 years of obama, it will do just fine over the next four…

We may have survived it barely, we just now trying to figure out how to pay for it?

Lol, your math has an error, but we all know opinion is better than facts.

Please link us to your real fact filled source.

It’s called the National Debt.

“Trump policies alone would ‘explode’ national debt by $5 trillion, Fix the Debt co-chair says”

Why don’t you show us yours.

Another poor-loser Trump Derangement Syndrome victim, just as comical as all the others. What kind of a competent lawyer would list a bunch of hypothetical scenarios and then attribute their possibility to DJT? Freedom of speech, nay, the whole Bill of Rights is not merely “a handful of words on aged parchment”, even without them being enumerated they would still exist as they are given to us by God. The idea that freedom of speech is anti-democratic is ludicrous on it’s face. Will you have the cojones to write another letter in four years apologizing for this inane missive? BTW, do you have anything to say about all the extra-Constitutional actions taken by the current POtuS? Didn’t think so.

Just because he fails by avoiding criticism of the current administration’s policies doesn’t mean that his basic points aren’t substantially right. Based upon what Trump has said, I too am concerned about his attitude towards many Constitutional rights. I am hoping that the statements were just campaign rhetoric but I remain cautious until I see how it plays out.

The Bill of Rights added to the Constitution was included to give more protections against tyranny — including “the tyranny of the majority.” In other words, the founders decided that everyone deserves these freedoms including minorities that might otherwise be oppressed by votes of the majority when they are swayed by passions of the moment.

I don’t know where you get the idea that the 1st Amendment (or any others) is “God given” but I do know that other than the “freedom of religion” clause in that amendment, God is not referenced in the Constitution at all. (The Declaration of Independence, yes, but not the US Constitution.) There is a reason for that. “God” is not the same to all people and likewise any interpretation of his word. The founders also recognized this as they had fought for their freedom from a country where government and religion were intertwined with power corrupting both.

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