I specialize in the First Amendment, and friends observe that, in these times, I must be awfully busy. The assumption is that the First Amendment is in trouble during these horrible times. For the most part, I think this assumption is misplaced. Of course, it is proper to think that President Trump is an autocrat, has threatened the rule of law, and has little regard for the First Amendment. For the most part, however, I believe this has helped the First Amendment rather than harmed it.
We are witnessing a time in which people are demonstrating and otherwise protesting government actions. We are witnessing a time in which the press is playing a critical role in exposing corruption and misconduct. Taken together the mass of citizens and the press are playing a more vital role than I have seen in my lifetime.
Don’t get me wrong. There is a lot wrong with the First Amendment, particularly its protection of the wealthy’s spending in election campaigns at the expense of democracy, but that preceded the election of Trump. Nonetheless, there is one recurrent and significant violation of the First Amendment in Trump times. A conspicuous example is the recent tax legislation. Obviously, it would be unconstitutional for Congress to tax Democrats in ways that are different from Republicans. But that is what the tax legislation does, albeit in a ham-handed way. By limiting the deductions for state taxes and capping mortgage deductions, the Republicans knowingly and intentionally hit the citizens of blue states harder than red states precisely because they voted for Democrats.
In my view, Donald Trump has a First Amendment right to criticize the press. But he has no right to take actions against the Washington Post or its owner and companion company because he does not like the Post’s reporting or fail to take action because the Mayor of San Juan criticizes the federal response to the crisis there.
Finally, it is unmistakably clear that the Framers intended a President to act on behalf of all the people. It is also unmistakably clear that Trump is not acting on behalf of all the people, but on behalf of his base including his wealthy donors (preferring the latter in contrast to his populist rhetoric). In other words, the majority of voters are not represented by Donald Trump precisely because of how they voted. To some extent, all Presidents do this to a degree, and that is why a court would not find Trump’s governing to be a First Amendment violation. Nonetheless, prior Presidents have exhibited concern for all the people in much of what they have done. Not so with Donald Trump. Governing to mirror the wishes of a minority (and to a large extent a deplorable minority at that) is the antithesis of the constitutional plan and an approach that crosses a First Amendment line.