The “travel ban” refers to an Executive Order signed by President Trump, banning travelers from six Muslim-majority countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Many legal experts believe that the Executive Order violates the First Amendment by purposefully discriminating against Muslims.The constitutionality of this Executive Order has been repeatedly challenged–and will most likely be decided by the Supreme Court this Fall.
On February 9, the 9th Circuit federal appeals court temporarily blocked the Trump administration from carrying out the Executive Order. The court raised the possibility that the Executive Order might violate the First Amendment, but did not actually rule on that issue.On March 6, Trump signed a revised version of the Executive Order, which, among other changes, no longer contains a provision prioritizing one religious group over another.
On March 15, a federal district court temporarily blocked the revised version of the Executive Order, finding that its purpose is to discriminate against Muslim immigrants, even though the text no longer mentions religion. Trump’s revised Executive Order was subsequently challenged in the Fourth and Ninth Circuit federal appeals courts.
On May 25, the Fourth Circuit Court of Appeals affirmed that the revised Executive Order violates the Establishment Clause of the First Amendment. (On June 12, the Ninth Circuit Court of Appeals also ruled against the Executive Order, but not on constitutional grounds.)
The Supreme Court has agreed to hear arguments on the travel ban in October. In the mean time, the ban will continue to a partial extent–the Supreme Court has said that it cannot be enforced against foreign nationals who have a bona fide relationship with a person or entity in the United States.
The Fourth Circuit federal appeals court has found that the underlying purpose of the Executive Order–even the revised version–is to discriminate against Muslims.The Establishment Clause of the First Amendment prohibits the government from favoring some religious groups over others. The framers of the First Amendment recognized that when the roles of the government and religion are intertwined, the result too often has been bloodshed or oppression.
“The order still singles out individuals from six of the same overwhelmingly Muslim countries…It is still a ban, signed by a president who promised to bar Muslims from entering the United States, motivated by an intent to discriminate against Muslims, and that overwhelmingly affects Muslims rather than those of other faiths.”
Social media platforms like Facebook and Twitter have a number of policies that ban certain forms of expression, like hate speech, nudity, and harassment, from their sites.
The First Amendment protects individuals from government censorship. Social media platforms are private companies, so it’s legal for them to censor what people post on their websites. But given the fact that most of the public discourse today takes place online, these policies can limit and chill speech as much as any government.
Many public colleges and universities have codes that prohibit speech that offends or attacks people on the basis of race, ethnicity, national origin, religion, gender, or sexual orientation. Although these codes are well-intentioned attempts to combat harassment and discrimination, most of them violate the First Amendment, which protects a great deal of offensive, disagreeable and even repugnant speech.
There have been a number of recent incidents where student groups have invited speakers who have a history of making controversial and offensive statements to speak on their campuses–leading other students to engage in protests that have, at times, resulted in colleges revoking those invitations. While these may seem like victories against hate speech, that attitude is short-sighted. Ultimately, these colleges are censoring free expression based on the will of the majority. And these students are ceding the power to determine what kind of speech is appropriate on their campuses to their colleges. The antidote to speech you don’t like isn’t censorship–it’s more speech.
You might not see the value in repugnant speech, but the problem with banning it is that free speech rights are indivisible. As the ACLU says, “Restricting the speech of one group or individual jeopardizes everyone’s rights because the same laws or regulations used to silence bigots can be used to silence you.”
A proposed constitutional amendment that would make it illegal to burn or otherwise damage an American flag.
This proposed amendment, which would make desecrating the American flag illegal, was introduced in Congress on June 14, 2017. The Supreme Court has made it clear in its previous cases that burning a flag is a form of political speech that is protected by the First Amendment–that’s why it would be necessary to amend the Constitution in order to make the act illegal.
The last attempt to pass an amendment like this was in 2006, and it failed in the Senate by only one vote. Also, President Trump has publicly stated that he thinks flag-burning should be illegal, and has even stated that flag-burning should result in a loss of citizenship.
Congress prohibiting a certain form of political speech–especially one that is critical of the government–would undermine the very freedom that the flag stands for. Plus, it would open up a lot of knotty legal questions about what constitutes an American flag (would a flag with forty-nine stars count?) and “desecration” (what about virtual desecration)?
President Trump has called the integrity of the press into question on numerous occasions. The President has even gone as far as to call them “the enemy of the American People.”The Trump White House has also limited access to certain briefings to those outlets that provide favorable coverage; threatened to change libel laws to make it easier for public figures to successfully sue the media; and made efforts to target reporters’ sources.
The credibility of the media has also been undermined by the proliferation of fake news on social media.
President Trump made campaign promises to change libel laws to make it easier for public figures to successfully sue the media. It would be very difficult for the President to change libel laws (although not impossible if a dramatically altered Supreme Court chose to reverse one of its landmark decisions). But more than that, the threat of libel lawsuits (or invasion of privacy lawsuits, like the one that bankrupted Gawker) can have a chilling effect on the press, especially smaller media outlets that may not have the budget to pay expensive legal fees.It may lead them to avoid reporting on controversial stories, which would effectively neuter the free press.
In order to fulfill their role as government watchdogs, reporters often rely on information leaked to them by government insiders.President Trump has repeatedly expressed a desire to crack down on leaks. It would be possible for the Trump Administration to use the Espionage Act, a law that makes it illegal to share information related to national security, to bring criminal charges against government employees who speak to reporters. (The Obama Administration had a bad track record of using the Espionage Act for this purpose.)
This type of retaliation against leakers can have a significant chilling effect on journalism.
Another thing that can have a chilling effect on journalism: border agents can, and have been, searching reporters’ electronic devices when they enter the United States, which has the potential to compromise and expose their confidential sources.
Recently, there has been a proliferation of phony or exaggerated news stories on the internet and spread through social media. Fake news undermines the credibility of the press (and the entire point of the press, insofar as truthful information about the world around us is supposed to help us make the best possible decisions).
The credibility of the press depends on being able to distinguish real and fake news. But efforts to censor fake news aren’t the answer (fun fact: a lot of fake news would be protected by the First Amendment).
Facebook has now begun to flag fake news that gets shared on its site, and Google has altered their search algorithm to make fake news less prevalent. But the moves by these companies and others aren’t enough. The solution to the problem may lie in providing news consumers more information about where their news comes from.
Before the advent of the Facebook news feed, you probably wouldn’t read and pass along a news story from an outlet you knew nothing about. Nowadays, you may not be able to tell whether the story you shared was produced by seasoned journalists or opportunistic Macedonian teenagers.
When journalists can’t do their jobs effectively, it’s the public, and their right to be informed, that suffers. The current Administration has vilified the press, creating an atmosphere where a journalist was arrested for trying to ask the Secretary of Health and Human Services questions, and another journalist was physically assaulted by a
“Our liberty depends on the freedom of the press, and that cannot be limited without being lost.”