Originally published in California Publisher, Fall 2020.
By Jason M. Shepard
Throughout his presidency, Donald Trump regularly attacked the foundations and precedents of the First Amendment.
He sued news organizations for libel, tried to stop the publication of books critical of him, and called for the firing and jailing of dissenters.
But paradoxically, the First Amendment was a crucial weapon for Trump and his supporters, giving them freedom to brew conspiracy theories and peddle falsehoods. Social media and partisan news outlets provided echo chambers that increased polarization and extremism, and sometimes even fueled hate and violence.
“I love the First Amendment,” Trump once said. “Nobody loves it better than me. I mean, who uses it more than I do?”
As Trump’s term ends, here are a few themes scholars will examine in assessing the First Amendment during the Trump era.
The federal courts
Among Trump’s legacies will be his transformation of the federal judiciary, including the U.S. Supreme Court. Because judges have the final say about what the First Amendment means, the makeup of the courts is important.
Trump appointed 165 district court judges, 53 appellate court judges, and three Supreme Court justices as of October 30, 2020, according to ProPublica.
During his presidency, Trump appointed judges at a faster pace than Barack Obama, and his appointees were younger and therefore likely to serve longer.
The fast-tracked nomination of Amy Coney Barrett to the Supreme Court, to replace Ruth Bader Ginsburg after her death on September 18, showed how crucial judicial appointments are to Senate Republicans.
Barrett was confirmed on a 52–48 vote eight days before Election Day, cementing a 6–3 conservative majority following Trump’s appointments of Neil Gorsuch in 2017 and Brett Kavanaugh in 2018.
First Amendment freedoms weren’t exactly at the forefront of Barrett’s mind at her confirmation hearings, when a friendly Republican asked her to name the five freedoms of the First Amendment.
“Speech, religion, press, assembly. I don’t know — what am I missing?” she asked, forgetting the right to petition the government for a redress of grievances.
The “conservative” First Amendment
Partisan labels don’t translate into predictable approaches to First Amendment law, and to a large degree, the Supreme Court has protected and expanded First Amendment rights in recent years.
The Court has decided 56 First Amendment free speech cases between 2005 and 2020, according to one study. The Court was unanimous in about one third of the cases, while the Court split 5–4 about 25% of the time.
Chief Justice John Roberts, appointed in 2006, sided with the majority 95% of the time. He has described himself as “probably the most aggressive defender of the First Amendment.”
The Roberts Court has used a robust interpretation of the First Amendment to strike down laws regulating offensive protests, violent video games and animal cruelty videos.
But the Roberts Court has also rejected First Amendment claims in key decisions that limited speech rights of public employees and high school students.
In some areas, the Court has been criticized for using First Amendment to achieve political and economic goals of conservatives, including striking down campaign finance legislation in Citizens United v. FEC (2010) and mandatory union dues in Janus v. AFSCME (2018).
Conservative judges have also interpreted religious freedom rights more broadly. The Court has upheld religious displays on public property and ruled that laws requiring religious “crisis pregnancy centers” to inform patients about abortion services likely violates the centers’ free speech rights.
This term, in Fulton v. City of Philadelphia, the Court could decide whether the First Amendment allows people to discriminate against LGBTQ citizens based on religious beliefs.
At a minimum, Trump’s appointees to the courts give more opportunities for the expansion of First Amendment rights important to corporations and the religious right.
Freedom of the press
Trump’s most sustained attack on First Amendment freedoms has focused on the press, who he has called the “enemy of the people.”
As a candidate in 2016, Trump pledged to use libel law to go after journalists.
Trump’s tried, but mostly failed, to fulfill this campaign promise.
For example, in 2020, the Trump campaign filed libel lawsuits against CNN, the Washington Post, the New York Times, and an NBC affiliate in Wisconsin, over opinion pieces and advertisements about special counsel Robert Mueller’s investigation into Russian influence and obstruction of justice.
By late 2020, at least two cases had been dismissed.
In addition to being a prolific, and mostly unsuccessful, libel plaintiff, Trump is testing the limits of libel law as a defendant. Both Summer Zervos and E. Jean Carroll are suing Trump in New York state courts after he accused of them of lying about unwanted sexual advances and sexual assault.
Notably, Trump has had some help from conservative legal minds in calling for major changes in libel law. In 2019, Supreme Court Justice Clarence Thomas called on his colleagues to revisit the landmark New York Times v. Sullivan libel decision. Changes to the Sullivan standard would be a monumental shift in the First Amendment.
Trump also tried to undermine press freedom in other areas, without much success.
In perhaps the most brazen effort, Trump and his allies sought injunctions to stop the publication of memoirs by his former national security adviser John Bolton and niece Mary Trump.
Judges rejected the prior restraints in both cases, and the books were published. Trump’s efforts aimed to undermine the foundations of the First Amendment outlined in Near v. Minnesota and New York Times v. U.S., which establish a high bar for prior restraints for publication of newsworthy information.
Trump’s attacks on journalist’s sources had mixed success. He successfully revoked security clearances of former officials who publicly criticized him in the media, and he called on his Justice Department to investigate and prosecute leakers.
In one notable case, Reality Winner, a government contractor, was sentenced to five years in prison for leaking information to The Intercept website about Russian attempts to hack U.S. voting systems.
But fears that Trump would double down on leak prosecutions seem unfounded, as few other leak prosecutions entered the public record.
In other attempts to undermine press freedoms, in two cases, Trump relented in the face of lawsuits after revoking White House credentials of two journalists, Jim Acosta of CNN and Brian Karem of Playboy magazine.
While Trump didn’t win many major legal battles against the press, his legacy may lie in weakening trust in journalism. A Gallup study found that only 10% of Republicans had “a great deal” or a “fair amount” of trust in newspapers, television and radio media, down from 32% just five years ago.
Punishing dissent and protest
Trump regularly called for the punishment of dissenters, including those exercising their First Amendment rights to assemble and petition for a redress of grievances.
“I think it’s embarrassing for the country to allow protesters,” Trump said in one interview.
As president, Trump criticized professional athletes who protested against police misconduct by kneeling during the National Anthem, calling them disloyal and unpatriotic.
Trump’s calls to fire athletes and boycott the National Football League undermined the principle of West Virginia v. Barnette, in which the Court in 1943 ruled that students couldn’t be forced to salute the U.S. flag.
And Trump’s calls to jail protestors who desecrate the American flag ran afoul of Texas v. Johnson, in which the Court ruled in 1989 that flag burning is protected expression. “The government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” Justice William Brennan wrote.
In 2020, as protests and civil unrest exploded to support the Black Lives Matter movement, the country saw a burst of public protests not seen since the Civil Rights Movement.
In some cities, protests turned violent and destructive, and police used a range of tactics to manage them. Social media posts went viral showing police using aggressive tactics against protesters, and even journalists. Civil rights groups helped organize legal defenses for those arrested.
Throughout, Trump called on the police to be tougher and more aggressive against protesters.
In one egregious move, in June 2020 federal police used tear gas and rubber bullets to disperse peaceful protesters outside the White House so the president could walk across the street to St. John’s Church for a photo op.
State legislatures around the country considered dozens of bills increasing penalties for protestors, including, for example, making some misdemeanors felonies, increasing fines, giving police greater ability to shut down protests, requiring protest organizers to pay for police costs, and allowing police to seize records and assets of protest organizers.
Fortunately, many of the most egregious anti-protest bills did not become law.
Regulating broadcasters and “Big Tech”
The Trump administration took a hands-off approach to some media regulatory issues, including ownership and localism rules that govern broadcasters.
But Trump has also called for new regulations for social media companies, setting up potential legal fights with “Big Tech” companies.
The Federal Communications Commission under Trump-appointed chairman Ajit Pai has been criticized for its “light touch” approach on many issues.
Notably, the FCC early in the Trump administration reversed course on Obama era rules mandating net neutrality — the idea that internet service providers shouldn’t be able to prioritize different websites in the flow of internet traffic.
The FCC during the Trump administration also scaled back rules that provide local control and ownership diversity in broadcasting markets. Those decisions are being challenged in the courts.
While deregulating broadcasting rules, the Trump administration increased its policing of tech companies in some cases.
Trump issued an executive order in August 2020 banning two Chinese-owned social media apps, TikTok and WeChat, from operating in the U.S., over concerns they pose a threat to national security. The case is mired in legal challenges and potential ownership changes.
In October 2020, the Department of Justice filed a major civil antitrust lawsuit against Google, alleging Google created an unlawful anticompetitive monopoly with special agreements and practices making Google the default, and thus dominant, search engine on platforms and devices. Experts say the case could drag on for years in the courts.
The social media president
Trump will be remembered as the first social media president. He ends his term with nearly 80 million followers on his @realDonaldTrump Twitter account.
Trump’s Twitter account has broken new ground in First Amendment law in several respects.
After Trump blocked several people from his Twitter feed, the Knight First Amendment Institute at Columbia University sued, arguing that citizens have a First Amendment right to access social media accounts of public officials. Lower courts ruled against Trump, and Trump is appealing to the Supreme Court.
Since the Trump decision, similar lawsuits across the country have established that elected officials generally can’t block citizens from their feeds, at least based on their political viewpoints.
Controversies over content moderation on social media will also define Trump’s legacy. In recent years, calls to limit disinformation and other harmful content have sparked changing rules, and as a result, some high-profile right-wing media stars have banned on some platforms.
Decrying this as a new form of censorship, Trump issued an executive order calling for changes to Section 230 of the Communications Decency Act, which give broad legal immunity to websites for user-generated content.
Notably, new social media policies have hit home for Trump. In the days following his electoral defeat in November, almost every one of the president’s Twitter posts alleging voting irregularities carried the warning: “This claim about election fraud is disputed.”
Truth in the marketplace of ideas
Trump’s presidency will be a case study of the post-truth era, in which scholars will find reasons to question longstanding assumptions about freedom of expression, including the theory that truth will ultimately prevail in a marketplace of ideas.
Trump’s most significant legacy may lie in the extent to which disinformation and extremism can flourish in American mass communications, in ways that undermine democratic values.
Indeed, in a recent interview, Obama worried about Trump’s successes in weakening democratic norms and the institutions that support democracy, including journalism.
“If we do not have the capacity to distinguish what’s true from what’s false, then by definition the marketplace of ideas doesn’t work,” Obama said. “And by definition our democracy doesn’t work.”
One of the big questions for First Amendment scholars will be what, if anything, should be done about it in a post-Trump era.
Jason M. Shepard, Ph.D., is chair of the Department of Communications at California State University, Fullerton. His primary research expertise is in media law, and he teaches courses in journalism, and media law, history and ethics. Contact him at email@example.com or Twitter at @jasonmshepard.