by Lata Nott, Executive Director, First Amendment Center
“Freedom of expression is never safe, never secure, but always in the process of being made safe and secure.”
On January 27th, 2017, President Trump signed an Executive Order banning travelers from seven Muslim-majority countries from the United States, but giving priority to refugee claims made by individuals whose religion “is a minority religion in the individual’s country of nationality.” In other words, the Order favored Christian refugees over Muslim refugees, which many legal experts saw as a violation of the First Amendment. On February 9, a federal appeals court temporarily blocked the Trump administration from carrying out the Order. (The court did not rule on the First Amendment 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 Order as well, finding that its purpose is to discriminate against Muslim immigrants, even though the text no longer mentions religion. This issue is likely end up before the Supreme Court.
The Establishment clause of the First Amendment prohibits the government from favoring some religious groups over others. It does so because 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. While the revised version of the ban doesn’t explicitly discriminate on the basis of religion, the federal district courts of Maryland and Hawaii have found that its underlying purpose is to discriminate against Muslims. As the ACLU has said: “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.”
Establishment Clause Overview (FAC)
It’s a Muslim Ban, and It’s Unconstitutional (CNN)
Why the Only Way to Fix the Muslim Ban Is Not to Have a Muslim Ban (ACLU)
Reaction and analysis: What happens now with Trump’s new travel ban? (LA Times)
President Trump made campaign promises to change libel laws to make it easier for public figures to successfully sue the media.
Quite honestly, 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.
This proposed amendment, which would make desecrating the American flag illegal, is currently on the short-list of constitutional amendments to be proposed in Congress this term. The Supreme Court has made it clear 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 one vote. Also, President Trump has publicly stated that he thinks flag-burning should be illegal.
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)?
The proliferation of phony news stories on Facebook.
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). But efforts to censor fake news aren’t the answer (fun fact: a lot of fake news would be protected by the First Amendment). 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.
The Espionage Act is a law that makes it illegal to share information related to national security.
The Obama administration had a bad track record with the Espionage Act, repeatedly using it to bring criminal charges against government employees who spoke to reporters. If the Trump administration continues this trend, it will be very tough for journalists to report on the government. Confidential sources and government leakers are often the best sources for exposing government misconduct. This will be especially true if the Trump administration continues to limit the traditional ways that the press gains access to government information, such as press pools, press conferences, and interviews with government subject matter experts.
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.
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.” Also, being able to openly debate different views is a vital component of college education. The antidote to speech you don’t like isn’t censorship–it’s more speech.