Can the First Amendment survive President Donald Trump?

November 21, 2016
Peter Scheer

Peter Scheer

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.


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Jorge Estrada

Free speech will most definitely be support by Trump or any other U.S. president. It is the perceived right to spread lies that will not survive Trump. It is about time that we have a leadership that will not tolerate word spinners that falsely represent freedom of speech and use this falsehood, in my opinion, to promote their agenda of bigger government and less personal responsibility. I look forward to 2017 and groveling snews media, yes snews because, in my opinion, they will be put to sleep by Trump and wake up as a public service.

Next will be the sanctuary cities, or should I say fugitive hideouts that will not be funded by the Federal Government, America is going to be beautiful again and funded accordingly where the Federal Government has compliance. Get ready for this one, it is called pragmatic.


Otis

Sheer’s statement and argument, “Trump has the potential to do grave harm to freedom of speech.” reminds me of the adage, “It is best to be quiet and thought a fool than to speak up and remove all doubt.”


Sheer states a foolish argument with the intent to protect the media’s propagandizing their ideologies. Trump criticizes the media by seeing through their ideological media bias. He thereby rightfully exercises the right to contradict the media’s criticism of him.


This is not an “assault on the freedom of speech”, it is a confirmation of its endorsement, a fact Sheer pretends to confirm. But then Sheer alleges Trump may corrupt free speech by regulatory action putting pressure on those with whom he disagrees, ignoring the fact that such actions may be necessary in any event as evident by the present transparent media bias directed at Trump.


Sheer alleges an evil when Trump fingers the fact that major owners use the media they control to express their dominant ideological views when in fact Trump’s legal remedy balances the scale of objective reporting and editorial comment. Sheer’s allegation of “political corruption of this kind” is foolishness.


Rawhide

Peter Scheer…

Like Obama, you like to hear yourself talk…

Substituting Obama’s name in your OP-ed in place of Mr. Trump’s describes exactly what Obama and his Administration has been up to these past 7 + years.

I’d like to know what Loretta Lynch told Mr. Clinton on the tarmac in her airplane.

And talk about corruption…you didn’t mention Clinton’s Pay for Play Muslim Funded Foundation. or Benghazi…etc


Pelican1

I’m curious, which part of America does Trump want to make great again? The civil war period that saw the death of 750,000 Americans? Or was it the assignation of President Lincoln?

Was it the Great Depression? Perhaps the Vietnam war era that saw the death of more than 58,000 Americans for essentially nothing. The assassinations of president Kennedy, Martin Luther King, and Robet Kernnedy? Maybe the Kent State killings? Or the civil rights movement which saw lynchings and church bombings. When the US invaded Iraq erroneously based on mis-information lending itself to the disaster that characterizes the middle east today?

Or the day to day gun violence that leads any other country in the free world?

Tell me, which “Great America” are we hoping to return to?


Pelican1

Oh..he must have been referring to manifest destiny and the theory of “Indian removal.”

Or maybe he’s suggesting that the period of slavery or segregation was a period of greatness.

I’m fairly certain the once plentiful American Bison would agree with Trump.

If anyone knows exactly when America was “great” please feel free to comment.


kayaknut

How about the part when we have a government for the people, all of them, not just the groups with money or loudest voice, instead of the other way around?


Pelican1

Exactly when was the government for “All” the people? Before or after slavery ended? Before women had the right to vote…or afterward?


kayaknut

Before you could buy a politician and when political service was considered a short term job not a lifetime position.


LAH

Gee Pelican,

Do you receive a check every month from the government? Or do you work for the Government? I ask because these are the people that seemingly don’t understand, nor consider, nor “need” , nor want the change in government most of us working Americans so desperately need.

We need every Mr. Joe or Ms Jane in this beautiful country of ours, to have the availability of a Decent Job. One that supports all his little Wee Joe’s without the need of Government assistance, nor the need of a double shift! THAT is what will make America Great again. Because THAT is NOT what is happening, Not for a long time.

Have you have forgotten the Idea of the “American Dream”? Most have…unless you are old enough to have already had it, or are uncommonly wealthy, OR you Work for the Government!


Pelican1

A·mer·i·can dream

Noun

noun: American dream; plural noun: American dreams

The ideal that every US citizen should have an equal opportunity to achieve success and prosperity through hard work, determination, and initiative.

“he could achieve the American dream only by hard work”

So tell me, has the American dream always been available?

How did a woman who couldn’t even vote hope to achieve the American dream? How did any black person prior to 1965 with the passage of the Voting Rights Act (despite the 15th amendment) ever hope to achieve the American dream?

Were 58,000+ American young lives lost in Vietnam part of the American dream ( I guess the never got a chance to experience the “dream”}

Again, please explain how Trump is going to return the American Dream opportunity to ALL citizens.


LAH

Seems like you are flying high on an ambiguous agenda ..LOL


We will Never revert to a time of fighting for voting rights.

Nor should we perpetuate any racial or preference discrimination.

WE are ALL Americans and deserve an Equal opportunity. And we should ALL STOP creating verbal chatter that insinuates anything other than EQUAL no matter who you are. Just by the “Chatter” you perpetuate racial inequality.How about talking about how we ALL have the right to a Good Job and the reach for the “American Dream”, Every American has that right. STOP differentiating between the races or sexes. The Blacks, Gays, Hispanics, Whites, Asians..etc..whoever..is no more than no less than Any other American.

ITs about time we talk about AMERICANS.


Well NOW we can all equally look forward to a future that provides employment enough sustain a person or family to an acceptable level.


BTW, You didn’t answer my question, Do you or did you work for Government or receive a monthly check from the government? (Other than an earned Social Security?) just curious, because there seems to be a pattern of attitudes…

No “attack” here, I have family that are gov workers. Just wondering..


shelworth

Yeah, remember when all the Romans were running around stabbing everybody? I hated it back then!


Rich in MB

Hey Peter….

Don’t look now but it would appear Freedom of Speech is under threat form the SLO Democratic Party!


https://calcoastnews.com/2016/11/slo-county-democratic-central-committee-seeking-suppress/


Oh the timing of this is just rich!


kettle

Some Demo party procedure is hardly a free speech issue.


RonHolt

Your statement is technically true but it does indicate an attitude that is dangerous — especially when that political party has the power to put those kind of ideas into law in certain jurisdictions like the City of SLO.


shelworth

This is too funny! Go read “SLO County Democratic Central Committee seeking to suppress” elsewhere on this website, go read the Fairness Doctrine, go to any of the “Safe Spaces” on college campuses (campi?), the left is really losing it over Trump.


abigchocoholic

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

————

Really?


First, your whole article is speculation.


Second, it’s extremely far-fetched.


Third, going after Bezos and Slim is going to stop them from exercising their first amendment rights? They are two of the richest human beings on the planet. You’re never going to silence them with a cast of bozo beaurocrats. They’ll outfund the federal govt. 100 to 1 and won’t even miss the tens of millions it takes to do it. They’ll hire the best law firms in the nation and drive the underfunded federal prosecutors and regulators into the ground every time they overstep their power or violate the law.


Fourth, think about what happened when Nixon tried to order his underlings to do unethical acts. They all abandoned him. The same thing would happen here.


Other than that, good article.


kettle

“as they are given to us by God” No, that is bullshit, the hand of man is all over it.


Something constructive to say? no? Just want to sling shade? You did it.


Rambunctious

Can the First Amendment survive President Donald Trump?


No so you had better move : )