People For the American Way Foundation

The White House’s Threats to First Amendment Protections Remind Us that Courts Matter

News and Analysis
The White House’s Threats to First Amendment Protections Remind Us that Courts Matter

The Trump administration is working on a way to eliminate First Amendment protections in order to deter or prohibit criticism of the president.

We don’t have an anonymous leak to thank for revealing this grave threat to our democracy. White House officials themselves have publicly said it, twice in two days.

Over the weekend, chief of staff Reince Priebus revealed it during an interview on ABC. Talking Points Memo quotes from the interview, emphasizing the parts relating to eliminating the freedom of speech and freedom of the press guaranteed by the First Amendment:

[Jonathan] KARL: I want to ask you about two things the President has said on related issues. First of all, there was what he said about opening up the libel laws. Tweeting “the failing New York Times has disgraced the media world. Gotten me wrong for two solid years. Change the libel laws?” That would require, as I understand it, a constitutional amendment. Is he really going to pursue that? Is that something he wants to pursue?

PRIEBUS: I think it’s something that we’ve looked at. How that gets executed or whether that goes anywhere is a different story. But when you have articles out there that have no basis or fact and we’re sitting here on 24/7 cable companies writing stories about constant contacts with Russia and all these other matters—

KARL: So you think the President should be able to sue the New York Times for stories he doesn’t like?

PRIEBUS: Here’s what I think. I think that newspapers and news agencies need to be more responsible with how they report the news. I am so tired.

KARL: I don’t think anybody would disagree with that. It’s about whether or not the President should have a right to sue them.

PRIEBUS: And I already answered the question. I said this is something that is being looked at. But it’s something that as far as how it gets executed, where we go with it, that’s another issue.

Press secretary Sean Spicer was asked about it today, and, as Talking Points Memo reports, he confirmed it:

White House spokesperson Sean Spicer doubled down on Monday.

“Is that a project that is currently being worked on by the counsel’s office?” the New York Times’ Glenn Thrush asked, referring to Priebus’ statements. “Can you tell me the status of that? Who is pursuing that?”

“I think the chief of staff made it very clear that it’s something that is being looked into, substantively and then both logistically, how it would happen” Spicer said. “But that’s nothing new. It’s something the President talked about on the campaign trail.”

Indeed, Trump did talk about it on the campaign trail, which is one of the reasons millions of Americans are worried about the future of our democracy.

Some of the most important Supreme Court cases in our nation’s history are those upholding the right to criticize public officials without fear of reprisal. In New York Times v. Sullivan (1964), the Court unanimously ruled in favor of the newspaper, which was being sued for defamation by an Alabama police official.

The Court held that, under the First Amendment, defamation suits against public officials are much harder to pursue than, for instance, a lawsuit involving two neighbors. Critics of public officials can’t be held liable for defamation unless the official can prove “actual malice.” That is an extremely high burden of proof, one that is so high that it protects just about anything said or written about a public official, regardless of whether it is actually true.

The Supreme Court’s interpretation of the First Amendment in that case has been vital in protecting the right to criticize and investigate elected officials.

And President Trump wants to undo that.

Priebus has said that they are undecided on “how to execute that.” A constitutional amendment is certainly one way. But populating our federal bench with the “right” people would be less cumbersome and could be done with far less public attention.

Our federal court system has protected freedom of speech and freedom of the press in decisions such as Sullivan. That system is made up of hundreds of federal judges serving on district courts, circuit courts, and the Supreme Court. Who they are has always mattered, but perhaps never more than now.

Trump has over 100 federal court vacancies to fill, and rumors are flying that Justice Kennedy may step down.

The fate of our democracy may very well depend on who fills those vacancies.


Courts, First Amendment, Freedom of Speech, Freedom of the Press, Lower Federal Courts, Supeme Court