Do Trump’s NFL Attacks Violate the First Amendment?

 In Politics

Whipping up the crowd at a campaign rally in Alabama last week, President Donald Trump excoriated NFL athletes audacious enough to refuse to stand with hand over heart for our national anthem. He called upon NFL owners “to get that son of a bitch off the field right now.” On Tuesday morning, he doubled down: “Kneeling during the playing of our national anthem I think is disgraceful.”

Trump found it intolerable that NFL athletes would dare to act in ways he regarded as disrespectful of our national heritage. Yet the president and his defenders simultaneously express outrage when liberal activists oppose speakers they believe publicly disrespect minorities. Attorney General Jeff Sessions, for example, proclaimed at Georgetown University on Tuesday: “Protesters are now routinely shutting down speeches and debates across the country in an effort to silence voices that insufficiently conform with their views.”

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The First Amendment, it seems, is a tricky subject. And those who would use its precious principles only for their own political ends do much to damage our constitutional commitment to free and open debate.

How might these principles apply to our president’s own behavior? Alone among modern chief executives, Trump seems intent on publicly insisting that those who oppose him be punished. A recent example is his call for the firing of ESPN anchor Jemele Hill, who had the temerity to call Trump out as a “white supremacist” and a “bigot.” How do the constitutional standards of the First Amendment apply to such behavior on the president’s part?

We might think of this question, first, in terms of how a court would respond if a lawsuit were brought against the president. We usually understand First Amendment protections in terms of judicially enforceable rights, yet First Amendment doctrine applies to Trump only with great difficulty. This is because judicially enforceable First Amendment restrictions typically exempt what courts call “government speech,” which means that, so far as the courts are concerned, the government doesn’t need to be viewpoint- or content-neutral when it speaks. As the Supreme Court explained in its 2015 opinion in Walker v. Texas Division, Sons of Confederate Veterans: “Were the Free Speech Clause interpreted otherwise, government would not work. How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary?”

When Trump speaks, it is as if the government were speaking. He can ordinarily say what he wishes. He can whip up frenzied opposition to Obamacare or NFL players. Yet there may nevertheless be judicially enforceable limitations.

If the president’s words are designed to trigger the legal suppression of citizen speech, he may likely be violating the First Amendment. The relevant case is the Supreme Court’s 1963 opinion in Bantam Books, Inc. v. Rhode Island. The decision concerned a Rhode Island commission charged with educating the public about obscene publications and recommending to the state attorney general the “prosecution of purveyors of obscenity,” as the court’s decision put it. As a formal matter, the commission did no more than engage in government speech that “exhorts booksellers and advises them of their legal rights,” but the Supreme Court nevertheless had no difficulty enjoining the commission’s activities, because “the record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed ‘objectionable’ and succeeded in its aim.” The commission “was in fact a scheme of state censorship effectuated by extralegal sanctions,” the court declared.

Perhaps we might draw an analogous conclusion about Trump’s remarks: The president has also engaged in a verbal campaign designed to suppress speech that offends him. We know that speech cannot be censored merely because it is offensive. As Justice William J. Brennan Jr. wrote in a 1989 case involving flag burning: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” In some ways, Trump’s behavior is even worse than the Rhode Island commission’s. Whereas the commission aimed to suppress obscenity, a category of expression without legal protection, Trump’s ire is directed at core political speech protesting law enforcement’s unfair treatment of minorities. Trump’s allies have already begun organizing boycotts (for example, a “Turn off the NFL” campaign) to give teeth to the president’s intemperate attacks.

Yet the analogy to the Rhode Island commission is perhaps too quick. It was crucial to Bantam Books that the commission’s threats were backed by the law enforcement institutions of the state. What booksellers feared was that the commission would cause the state to initiate criminal prosecutions. For all Trump’s braggadocio, there is no indication that he is invoking the law enforcement apparatus of the federal government to harass or sanction NFL players who are taking a knee. Were such evidence adduced, Bantam Books tells us that Trump’s threats would violate the First Amendment. In fact, this conclusion would follow if Trump intended to activate any part of the vast civil and regulatory infrastructure of the federal government to retaliate against NFL players (or their employers) for their protests.

The same conclusion would also follow if it could be shown that Trump, using the considerable authority of his office, conspired with private groups to compel NFL owners to sanction players who take the knee. Insofar as Trump uses the power of his office, it does not matter whether he acts through the FBI or through private parties; he would still be suppressing speech under the color of state law and thus violating the Constitution. Trump skates close to this edge when he uses his official Twitter account to retweet calls for an NFL boycott.

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