1 week ago

Don’t assume the first amendment will thwart Trump’s pro-censorious agenda | Jameel Jaffer

A president who intends to prosecute journalists, deport student protesters, imprison flag-burners, shut down broadcasters and throw the book at whistleblowers – to list just a few of president-elect Donald Trump’s speech-suppressive ideas – is likely to collide very quickly with the first amendment.

But whether the first amendment will be a real obstacle to Trump’s censorial agenda is difficult to predict. Some of Trump’s ideas will require the US supreme court to address free speech questions it has long avoided, while others will implicate precedents that the court may be eager to revisit. Trump has already appointed three of the court’s justices and he may have the opportunity to appoint more – at a time when the very meaning of free speech is deeply contested. So, yes, Trump will run up against the first amendment, but don’t take for granted that he will be thwarted by it.

Consider, first, the constellation of questions at the intersection of press freedom and national security. The supreme court decided half a century ago, in what is still regarded as one of its most important press-freedom rulings, that the first amendment didn’t permit the government to block the New York Times from publishing the Pentagon Papers, a classified history of the Vietnam war. Even as it barred the government from stopping the presses, though, the court left open the possibility that reporters and publishers might be prosecuted after the fact. The Nixon administration seriously considered filing those charges, though it ultimately went after the whistleblowers instead.

The momentous question of whether newspapers can be prosecuted for disclosing government secrets has cast a shadow over the press. The shadow darkened ominously when, during Trump’s first term, the justice department indicted WikiLeaks founder Julian Assange for publishing classified US cables and other information about the wars in Afghanistan and Iraq. When Assange pleaded guilty, earlier this year, to one charge of violating the 1917 Espionage Act, he spared the courts from having to address the first amendment question the Pentagon Papers case left open – but of course that means that the question is still open now, to be answered finally by a supreme court that Trump himself will have shaped.

Also open, or at least not fully resolved, is the question of when government investigators can compel journalists to reveal their sources. Source protection is vital to journalists’ ability to gather information – if journalists can’t promise confidentiality, sources are less likely to talk with them. This is why press freedom groups, including the one I direct, have urged Congress to pass the Press Act, which would give journalists the ability to shield their sources in most contexts.

In the absence of a federal “shield law”, journalists’ ability to promise confidentiality in the context of federal investigations stems principally from media guidelines that Joe Biden’s attorney general put in place two years ago and that Trump’s attorney general will probably jettison.

Once those guidelines are dispensed with, only the first amendment remains – but we don’t know how the supreme court will interpret it. The court last considered the question in 1972, in a case involving grand jury subpoenas served on journalists investigating hashish production by the Black Panther party. Unfortunately, the controlling opinion in that case, written by Justice Lewis Powell, is famously enigmatic. How the current supreme court understands it will matter a great deal if the Trump administration directs journalists to expose government whistleblowers, as we can safely assume that it will.

On the intersection of free speech and immigration, the supreme court has said even less. During Trump’s first term, US immigration authorities tried to silence immigrant rights activists by selectively deporting them. The strategy was possible because the court has not fully resolved the question of whether immigrants can raise selective-enforcement claims under the first amendment, with the court having last addressed the question in a highly idiosyncratic terrorism case 25 years ago. (The case involved members of the Popular Front for Liberation of Palestine who contended that the government had targeted them for deportation because of their association with a politically unpopular group.)

If Trump revives the selective-enforcement strategy, the court will have to return to this question. Trump’s threat to cancel the visas of foreign students who participate in anti-war protests may also require the court to resolve issues it has long avoided.

It’s true that some of Trump’s ideas should be foreclosed by precedent. If the last few years have shown us anything, though, it’s that even the most well-settled precedents may now be up for grabs. Justices Clarence Thomas and Neil Gorsuch have already said that the court should reconsider New York Times v Sullivan, the landmark case that limits the ability of public officials to recover defamation damages from the media. Some lower-court judges already have their sights set on NAACP v Claiborne Hardware, in which the supreme court held that the first amendment protects politically motivated consumer boycotts.

The first amendment has never been static – not for the past 100 years, anyway – but now it’s likely to evolve more rapidly, for better or worse. Even without Trump as president, the supreme court in the next few years would have to deal with consequential free speech questions relating to social media surveillance, artificial intelligence, online censorship, the government’s authority to access privately held data and the right of citizens to use foreign technology platforms.

With Trump in the Oval Office, the court will find itself having to answer a slew of critical questions it has skirted or sidestepped for years. Whether the court will fortify the first amendment in the course of rejecting Trump’s speech-suppressive policies, or hollow it out by accommodating them, we’ll see, but no one should take the answer for granted.