Donald Trump and the First Amendment

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.

Comments

[Steve Shiffrin]

Charlie, Fernando, and Jimbino: thanks for the comments.
Charlie, we agree that the violation is a democratic one. I had Fed. 10 in mine when I referred to the constitutional plan. Fed. 10 is also relevant to the campaign finance issue. But I also would go further in claiming the violation also implicates the First Amendment.
Fernando, I am not sure how you connect Trump to your comment. If the "militant left" would exclude pro-Trump speakers from public university campuses when those speakers would engage in speech that should be protected under the First Amendment, I would not concur the exclusion. If the exclusion is on a private campus, the First Amendment does not apply (though it's spirit could). One place where we disagree is that I would join the position of the Europeans and the Canadians in prohibiting some forms of racist speech (including some other protected classes)(though my definition might be narrower than that used in some European countries). By the way, do you think that the Canadians and Europeans who support hate speech are all part of the "militant left"?
Jimbino, treating singles differently than marrieds (which has nothing to do with the First Amendment) is not the same as discriminating on the basis of point of view which clearly implicates First Amendment issues.

[Charlie Firestone]

Brazenly, the Republicans legislated the monumental tax bill without any input from half the country -- no hearings, no involvement from Democrats. And it is not as if the Dems did not want to be a part of it. They were excluded from the beginning in the writing of the legislation.

I don't see this as a first amendment violation, but a democratic one, and one contemplated as noxious in Fed. 10.

[Fernando Teson]

Perhaps you are overlooking the threat to the First Amendment by the militant left in university campuses, my friend?

[jimbino]

"Obviously, it would be unconstitutional for Congress to tax Democrats in ways that are different from Republicans."

How so? Congress explicitly taxes singles more than marrieds and the child-free more than breeders.