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Why Trump's Threats Against Media Licenses Might Actually Violate the First Amendment

No, the president actually doesn't have the right to say whatever he wants.

Jeff Malet Photography/NewscomJeff Malet Photography/NewscomOne of the truly great things about the First Amendment is that it applies to everyone. Well, almost everyone.

With very few exceptions, the free speech protections enshrined in the U.S. Constitution give Americans the right to say pretty much whatever we want, whenever we want. And the courts have carefully protected that right for a long time—even that silly thing about not being allowed to shout fire in a crowded theater was later overturned by the U.S. Supreme Court—guided by the wisdom that free speech is vital for a vibrant, democratic, pluralist society to function.

You can talk, yell, tweet, post, and publish pretty much anything you want. You can even say that you want to stop other people from having free speech rights—which would be a bad thing to do, but hey, man, free speech!

Unless, of course, you happen to be the President of the United States, or another public official. Then the First Amendment works a little bit differently.

This is important because the current occupant of the White House, a certain Donald Trump, is in the midst of a slap-fight with NBC over what the president views as "fake news" about his administration. Twice on Wednesday, Trump tweeted that "network news" could have licenses revoked over reporting "distorted" and "partisan" information.

Reason's Matt Welch has already covered the reasons why Trump is very wrong about this—in fact, Trump's own FCC chairman, Ajit Pai, gave a speech last month where he sounded the warning that "free speech in practice seems to be under siege in this country."

But, somewhat ironically, Trump's attacks on the First Amendment may themselves be a violation of the First Amendment. And not in the philosophical sense—they are that too, of course—but in the very real sense of actual law regarding the First Amendment.

As Trever Timm, executive director of the Freedom of the Press Association, writes in the Columbia Journalism Review today, Trump doesn't even need to act on his threats against NBC to be violating the constitution. "There's a compelling argument Trump is in violation of Constitution right now—after he crossed the line from criticism of protected speech to openly threatening government action," Timm writes.

Timm cites quite a bit of case law to support his claim. Perhaps the most important bit comes from Judge Richard Posner, who wrote the Seventh Circuit ruling in BackPage LLC v. Thomas Dart, Sheriff of Cook County, Illinois. In that case, law enforcement officials were trying to threaten credit card companies, processors, financial institutions, or other third parties with sanctions intended to ban credit card or other financial services from being provided to Backpage.com (here's Reason's Elizabeth Nolan Brown's take on the case and ruling). Dart wasn't taking direct legal action against Visa and Mastercard, but he did send threatening letters to their offices, pressuring them to cut off services with Backpage.com.

That's not something government officials are allowed to do, said Posner, citing earlier case law on the matter.

"A public official who tries to shut down an avenue of expression of ideas and opinions through 'actual or threatened imposition of government power or sanction' is violating the First Amendment," the judge wrote.

As Timm points out, some Trump defenders—including Vice President Mike Pence—have said that Trump is merely exercising his own First Amendment rights to say what he wants to say about NBC and the media in general. But are threats to use government force part of the First Amendment? Posner suggests otherwise:

"A government entity, including therefore the Cook County Sheriff's Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens. "[A] government's ability to express itself is [not] without restriction. … [T]he Free Speech Clause itself may constrain the government's speech."

This makes sense. Like the other rights protected by the Constitution, the right to free speech is a right that resides with the people, not the state. Enumerating those rights, as the Founders well knew, was important to protect them from infringement by the state. The government does not have the same right to free speech because that speech can always be backed up with coercive force. Allowing government officials to make threats like the ones made by Trump or Dart would strip away free speech from their respective targets who would have to live in fear of government action.

And it doesn't matter that Trump does not have direct authority to revoke NBC's license. As Timm points out, the Second Circuit Court of Appeals has ruled that public officials free speech can be curtailed when it "attempts to coerce," rather than attempting to convince. There is little doubt that Trump's tweets—and, don't forget, those tweets count as official statements from the White House—are a form of coercion.

Trump is no longer a private citizen. As the head of Trump, Inc., he could threaten to revoke NBC's licenses as many times as he wanted. Someday, when he returns to being a private citizen, he can do that too.

As long as he sits in the Oval Office, though, Trump's free speech rights are necessarily curtailed.

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  • Fist of Etiquette||

    You're not allowed to yell "Yank that fire's permit!" in a crowded theater.

  • Quixote||

    Exactly, and no one is allowed to send out inappropriately deadpan "parodies" and claim that they're "protected speech" either. See:

    https://tinyurl.com/criminal-satire-nyc

  • John||

    Last I looked, the 1st Amendment said "Congress Shall Make No Law'. I am pretty sure Trump's word is not law. Moreover, to have a "violation" of an Amendment, you have to have a real case or controversy and that means a real harm. "I am butthurt" isn't a real harm for the purposes of violating the 1st Amendment.

  • DJF||

    What about their Feelz!!!!!

  • Hail Rataxes||

    Care to respond to what's actually in the post?

    Timm cites quite a bit of case law to support his claim. Perhaps the most important bit comes from Judge Richard Posner, who wrote the Seventh Circuit ruling in BackPage LLC v. Thomas Dart, Sheriff of Cook County, Illinois. In that case, law enforcement officials were trying to threaten credit card companies, processors, financial institutions, or other third parties with sanctions intended to ban credit card or other financial services from being provided to Backpage.com (here's Reason's Elizabeth Nolan Brown's take on the case and ruling). Dart wasn't taking direct legal action against Visa and Mastercard, but he did send threatening letters to their offices, pressuring them to cut off services with Backpage.com.

    That's not something government officials are allowed to do, said Posner, citing earlier case law on the matter.

    "A public official who tries to shut down an avenue of expression of ideas and opinions through 'actual or threatened imposition of government power or sanction' is violating the First Amendment," the judge wrote.
  • BYODB||

    It is interesting that a threatened imposition of government power or sanction is a violation of the first amendment.

    This would mean several Federal agencies are unconstitutional, yes? I think we'd probably agree there.

  • John||

    Sure. Nothing in those tweets constitute a threat of anything. As I explain below, they are a null set. The argument is stupid.

  • JunkScienceIsJunk||

    The argument is that the threat of passing a law (or executive action) with the intent to enact a change is the violation. The court often holds that threatening to do something can be coercive. I don't know the right answer, but it's interesting. And probably meaningless, because I can't imagine any possibility of repercussions for this.

  • CE||

    I'm pretty sure that making a law about granting licenses to the press is making a law abridging both the freedom of speech and of the press.

  • Tony||

    Last I checked the constitution wasn't terribly specific on the reasons a president can be impeached.

  • Diane Reynolds (Paul.)||

    Trump doesn't even need to act on his threats against NBC to be violating the constitution. "There's a compelling argument Trump is in violation of Constitution right now—after he crossed the line from criticism of protected speech to openly threatening government action," Timm writes.

    I'm philosophically sympathetic to the idea that threats of dampening speech do in fact dampen speech. But as a legal matter, it seems like if you accept that argument constitutionally, that puts all kinds of other activity from government officials in violation of the constitution.

    For instance, could we argue that foreign governments and heads of state are undermining the first amendment, especially Germany with its new law which fines social media companies (almost all of which are American-owned) if they don't block hateful or divisive speech?

    I know the counter to that idea is that since these are foreign laws and foreign heads of state, that whatever actions they take can't legally have any impact on our domestic speech landscape. But that's kind of the point, there's a clear, bright line-- and to me, the clear bright line is "Congress shall make no law", so the President running his mouth doesn't live up to that.

  • John||

    The other thing is that even if you buy the argument that threatening government action violates the 1st Amendment, Trump didn't actually threaten anything. His "threats" are a null set. He says he would take their license "if appropriate" which nullifies the rest of the sentence. Trump never actually threatened anything.

    I guess actually reading the tweets with any precision is too much to ask.

  • BYODB||

    Asking him to tweet precisely is definitely too much to ask.

  • Hail Rataxes||

    Uh, foreign governments aren't bound by the first amendment.

  • Diane Reynolds (Paul.)||

    You missed my point about clever, novel legal theory.

  • JunkScienceIsJunk||

    "that puts all kinds of other activity from government officials in violation of the constitution."

    It sure does!

    ('bout damned time too)

  • Longtobefree||

    "But, somewhat ironically, Trump's attacks on the First Amendment may themselves be a violation of the First Amendment."

    In the tweets posted in the article, I do not see a single attack on the first amendment. Trump is suggesting that existing federal law be followed. If the public airwaves are being abused by a license holder, as in publishing false news, then the public has the legal right to request the FCC to review that license in light of the public good. How is that an attack on the first amendment?

    And;
    (acknowledgement: Posner is commenting on a case that is not at all comparable to Trumps' tweets)
    "That's not something government officials are allowed to do, said Posner, citing earlier case law on the matter.
    A public official who tries to shut down an avenue of expression of ideas and opinions through 'actual or threatened imposition of government power or sanction' is violating the First Amendment," the judge wrote."

    So how does the "dear colleague" letter fit into that scenario? Did not a federal official threaten imposition of government sanction on colleges who did not immediately suspend due process?

    Or is it only subject to media panic when done by Trump?

  • John||

    Trump is arguing that publishing false news is grounds for revoking a broadcast license an that these networks might be guilty fo that and taking their licenses appropriate. Is he right about that? I honestly don't know FCC law well enough to say. But right or wrong, advocating a reasonable interpretation of existing law is not a violation of the 1st Amendment, even if the interpretation is wrong.

    I don't think Eric went to law school or knows much about Constitutional Law. Worse, he doesn't seem to interested in learning.

  • TrickyVic (old school)||

    I believe cable is not regulated by the FCC because it is not broadcasted through the air.

  • BYODB||

    Pretty much, which is why HBO can show so many tits. The assumption being that you are actively buying Cable, rather than passively receiving broadcasts, therefore there isn't a public interest as it's a private transaction.

    At least this is what I recall from Media Law.

  • Bubba Jones||

    That and the whole premise of the FCC is that there are finite chunks of wavelength that are under the stewardship of the government.

    Cable doesn't fit into that because there is no practical limit to the number of channels.

  • Demosthenes3000||

    From the FCC:

    However, as public trustees, broadcast licensees may not intentionally distort the news: the FCC has stated that "rigging or slanting the news is a most heinous act against the public interest." The Commission will investigate a station for news distortion if it receives documented evidence of such rigging or slanting, such as testimony or other documentation, from individuals with direct personal knowledge that a licensee or its management engaged in the intentional falsification of the news. Of particular concern would be evidence of the direction to employees from station management to falsify the news.

  • Liberty =><= Equality||

    It seems likely that Eric does know constitutional law but is just playing dumb to advance the narrative.

    The comparison to the Backpage case is ridiculous.

  • Bronson, Missouri||

    I heard he already violated all the amendments. However many there are, like 80-something?

  • Uncle Jay||

    RE: Why Trump's Threats Against Media Licenses Might Actually Violate the First Amendment
    No, the president actually doesn't have the right to say whatever he wants.

    "There's a compelling argument Trump is in violation of Constitution right now—after he crossed the line from criticism of protected speech to openly threatening government action,"

    I sure am glad there are restrictions on free speech.
    Otherwise we might have a free country.
    No one wants that.

  • Diane Reynolds (Paul.)||

    Again, I'm willing to entertain this novel legal theory, but that puts all kinds of legislators on notice, 'cause while Trump runs his mouth in a crass and undisciplined way, there are lots of lawmakers who run their mouths about this kind of stuff, which would put them in violation of the first amendment (the second, the fourth etc.) just by exhaling.

    I say we go ahead and agree that Trump is violating the constitution by merely running his mouth, then let's see what members of congress blink first.

  • Diane Reynolds (Paul.)||

  • Diane Reynolds (Paul.)||

    Absent changes, the Democratic members warned, they could push more forcefully for regulation.

    "If Twitter continues to prove unable or hesitant to grasp the seriousness of this threat and combat the radicalized climate that is being stimulated on your platforms, we, as members of Congress, will be left with little option but to demand for increased regulations and government oversight of this industry to address these problems."
  • Mickey Rat||

    It seems that Presidents and Congressional and Senate Committee members have been abusing the 1st Amendment since at least Teddy Roosevelt's time if this interpretation has any teeth.

  • BYODB||

    A thousand times this. So I say let this fly. We could fire most of Congress and the Senate overnight, as well as dismantle most of the Federal alphabet.

    It's actually starting to look like people will pay lip service to Libertarian idea's now that Trump holds power. We should elect more douche bags with big mouths that say non-PC things, it seems to be a winning strategy from our point of view.

  • Mickey Rat||

    You think they are going to apply thst standard to regular old politicians?

    I love your optimism!

  • Diane Reynolds (Paul.)||

    One last thought, perhaps it's time to step back and ask questions about how we arrived at a place where you required a license to speak from a federal agency run un-elected officials.

  • Longtobefree||

    Assuming " run BY un-elected officials" --

    You only need a license if you broadcast over the "publicly owned" airwaves. Because they are owned by the people, then you need un-elected bureaucrats to determine who should be permitted license to use those airwaves. It certainly would not do to just allow the people the use the airwaves owned by the people.
    As so many note, and as Trump did NOT tweet, cable is not subject to FCC regulations because it does use the airwaves.

  • Longtobefree||

    Scary conspiracy theory thought for the week:
    A large portion of internet access is done using cell phones, and tablets that use those same towers. Guess who owns the airwaves used by cell phone signals? Yep, the same "the people'.
    How about the first amendment gets equal protection with the second amendment? All cell phone tower users have to get a permit from the local sheriff to access anything on the web, or to post any kind of 'speech' on any kind of forum or comment section. The sheriff can deny the permit without reason, and there is no appeal. Prior to applying for the permit, the applicant must undergo training costing a couple of hundred dollars, provide fingerprints and pay for a background screening, and submit a non-refundable fee with the permit application. No screen names are allowed, all speech must be in the true legal name of the speaker.
    Anyone wishing to post or text to groups of more than two people, called high volume, or 'assault speech', must also obtain a second permit from the federal government, with more fees, and allowing 'audits' by federal officials at any time and any place to assure compliance.

    Welcome to the revolution.

  • CE||

    I'm pretty sure cell phones work by magic, not airwaves.

  • Mickey Rat||

    Hoover's unfortunate progressive dabble in fascist economics which maintains the airwaves are the unalienable property of the people, which is the only thing that makes Trump's stream of consciousness threats even plausible.

  • Mickey Rat||

    Hoover's unfortunate progressive dabble in fascist economics which maintains the airwaves are the unalienable property of the people, which is the only thing that makes Trump's stream of consciousness threats even plausible.

  • JunkScienceIsJunk||

    "Because they are owned by the people"

    I call dibs on the color red!

  • BYODB||

    I'm curious where in the 1st Amendment this Presidential exception is.


    Does this mean that Obama was in violation for saying he was going to put the coal industry out of business?


    I must have missed that 1st amendment argument at the time.

  • Ra's al Gore||

    Inside Obama's bank CEOs meeting

    ...But President Barack Obama wasn't in a mood to hear them out. He stopped the conversation and offered a blunt reminder of the public's reaction to such explanations. "Be careful how you make those statements, gentlemen. The public isn't buying that."

    "My administration," the president added, "is the only thing between you and the pitchforks."...

  • Homple||

    I dunno. As I recall, the Fairness Doctrine was imposed and then removed by regulatory authority, all without a First Amendment.

    The Democrat Congress at the time tried to make it into law and Reagan vetoed it (again, my recollection might be faulty).

    While I don't like Trump's nattering about re-instituting the FD, it will never be allowed to happen under a GOP administration, so there's no worry now.

    Reserve your angst for the next Democrat Congress and President combination, because you'll need it then.

  • BYODB||


    While I don't like Trump's nattering about re-instituting the FD, it will never be allowed to happen under a GOP administration, so there's no worry now.

    Don't be so sure of that.

  • JunkScienceIsJunk||

    The fact that there is such a thing as a "license" related to communication, and that they are accompanied by a list of conditions (e.g. you can't say fuck), is already a violation of the notion of free speech.

  • IceTrey||

    So it IS legal to falsely shout fire in a crowded theater and cause a panic?

  • Longtobefree||

    Yep. But be advised, you may be trampled.

  • CE||

    Why Trump's Threats Against Media Licenses Might Actually Violate the First Amendment

    FTFY

  • Number 2||

    So I take it that Trever Timm, as well as #Resistence, now support the repeal of the Federal Communications Act because of the unconstitutional power it grants the government to regulate the protected speech of broadcasters, based on the now-thoroughly-disproven claim of "spectrum scarcity." And NBC will be more than ready to surrender its protected share of the TV broadcasting oligopoly in order to remove any potential government threat to its local affiliates' free speech rights. Right?

    Sure. And I'm the Pope.

  • Liberty =><= Equality||

    What about the free speech rights of the people who can't get a broadcast license because corporate media outlets "own" all the spectrum, which they use to push their corporate propaganda?

    NBC being entitled to a piece of the spectrum forever just because they're NBC is NOT freedom of speech.

  • Liberty =><= Equality||

    As Timm points out, the Second Circuit Court of Appeals has ruled that public officials free speech can be curtailed when it "attempts to coerce," rather than attempting to convince.

    Interestingly, neither Mr Boehm here at Reason, nor the MSM puppet at the Columbia Jingoism Review cite where this supposed ruling can be found; the CJR only mentions that it comes from 2003. The quote has an ellipsis in the middle of it, too.

    Reason has been caught hiding important details with an ellipsis before and I would assume that the MSM puppet is no better.

  • Liberty =><= Equality||

    OK found the ruling with some google-fu. Incredible. This is the letter that was in question in the 2003 Second Circuit ruling:

  • Liberty =><= Equality||

    On March 8, 2000, defendant Guy Molinari faxed a letter to PNE under letterhead reading "City of New York[,] President of the Borough of Staten Island."  Id. ¶ 21;  J.A. at 31.   Molinari's letter stated:

    For the last two days we have attempted to contact your office, without success ․

    I write regarding the recent appearance on two of your Staten Island billboards of four translations of Leviticus 18:22.   As you are probably aware this particular biblical verse is commonly invoked as a biblical prohibition against homosexuality.

    The sponsor for the billboard message is nowhere apparent on the billboard, so I am writing to you with the hope that I can establish a dialogue with both yourself and the sponsor as quickly as possible.

    Both you and the sponsor of this message should be aware that many members of the Staten Island community, myself included, find this message unnecessarily confrontational and offensive.   As Borough President of Staten Island I want to inform you that this message conveys an atmosphere of intolerance which is not welcome in our Borough.

    P.N.E. Media owns a number of billboards on Staten Island and derives substantial economic benefits from them.   I call on you as a responsible member of the business community to please contact Daniel L. Master, my legal counsel and Chair of my Anti-Bias Task Force ․ to discuss further the issues I have raised in this letter.
  • Liberty =><= Equality||

    No comparison to Trump's tweet whatsoever.

  • Malvolio||

    Is that sarcasm? It seems directly on point: a government official was threatening sanctions against a media company for speech he disagreed with.

  • Malvolio||

    My question is, do the aggrieved parties have any redress? Can they sue Trump?

  • epsilon given||

    To further complicate matters, it is my understanding that NBC doesn't even have a broadcast license, only local NBC affiliates do. Will the Federal Government yank the license from each of these affiliates? That would be very interesting to know...

    But I agree with what at least a couple of other comments have already pointed out: it isn't President Trump's tweets that are a violation of free speech, so much as the licenses themselves. Hoover decided to create a licensing scheme, even though at the time, cases were already wending their way through the courts concerning people who were "homesteading" the spectrum. Radio would likely look a lot different had these cases been allowed to take their course. Would it have been better? Who knows? But it's also likely that the federal licensing scheme has set our radio technology back decades as well, because there's no incentive to try to make the most of the spectrum, including the possibility of exploring techniques that would have allowed multiple people to broadcast on the same frequency, effectively making this an unlimited resource...

  • Malvolio||

    Well, the license is a violation of free speech, but any threat, veiled or overt, to use political authority to punish speech is an independent violation.

  • 9thGateKeeper||

    It seems the author missed the basic college course explaining how broadcasters do not own the spectrum space they broadcast within - the public owns it.

    Broadcasters have zero rights to spectrum space.

    Broadcasters are allowed to apply for a license - and must broadcast for the 'common good' - or lose their license.
    This is not a 1st A issue; this is a failure to broadcast toward the 'common good'.

    "Common good' - while determined by the FCC - and possibly the SCOTUS - may include 'balanced' use of spectrum space.

    'balance use' = 'common good'.

  • tommhan||

    It was not a threat but a comment that someone should look at their license over their lies.

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