Why Trump’s Threats Against the NFL May Violate the First Amendment

It would make sense if President Trump — the man who once tweeted that “Barney Frank looked disgusting–nipples protruding–in his blue shirt before Congress” — were a rigid supporter of the First Amendment. But that’s not the case: He’s threatened to “open up” libel laws. He’s called journalists the “enemy of the American People.” He’sblocked critics on Twitter. His administration has selectively barred media organizations from attending briefings. And now, with recent tweets targeting the NFL and NBC, he might have violated the constitution.

Why is the NFL getting massive tax breaks while at the same time disrespecting our Anthem, Flag and Country? Change tax law!

— Donald J. Trump (@realDonaldTrump) October 10, 2017

With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!

— Donald J. Trump (@realDonaldTrump) October 11, 2017

To be sure, Trump has his own speech rights. He’s allowed to opine on NFL players, CNN, or other men’s nipples all he wants. But his rights are different than those of a private citizen. As a public official, the First Amendment prohibits him from threatening “coercive state power” to suppress the speech rights of individuals exercising their constitutional rights. 

There’s a case to be made that his recent tweets have done just that.

In a blog post about the constitutional implications of Trump’s recent tweets, Robert Post, Sterling professor at Yale Law School, describes the questions a court would ask to determine if Trump had violated the Constitution:

Did he use the “prerogatives of his office to conspire with private parties to suppress speech?”

Did he intend to invoke any part of the federal government to retaliate against individuals for their speech?

A “yes” to either one of these questions means Trump violated the Constitution.

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Writing for the ACLU, David Loy and Melanie Ochoa noted a case from 2000 that illustrates how the courts have thought about the topic:

...a minister bought billboard space in the Staten Island borough of New York City for two advertisements that offended the borough president. The borough president then sent a letter to the billboard company noting that it “derives substantial economic benefits” from its billboards and calling on it to “discuss further the issues I have raised.”

Essentially, the borough president delivered the veiled threat, “Nice billboards you’ve got there. It would be a shame if anything happened to them.” Unsurprisingly, the company pulled the advertisements.

The Second Circuit Court of Appeals found that the official’s “implicit threat of retaliation” had violated the First Amendment because it induced the owner to silence the minister’s speech.

Another relevant case on the subject is BackPage LLC vs. Thomas Dart, Sheriff of Cook County, Illinois, as Trevor Timm notes in the Columbia Journalism Review. It involved a sheriff who sought to bring down classified advertising service Backpage.com by sending letters to Visa and Mastercard urging them to cease all payments to Backpage because some of its ads “might be for illegal sex-related products or services.” Judge Richard Posner of the Seventh Circuit ruled that if the sheriff couldn’t prosecute Backpage for legitimate legal violations, then he couldn’t use his government position to censor the company in other ways:

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. American Family Association, Inc. v. City & County of San Francisco, 277 F.3d 1114, 1125 (9th Cir. 2002).

This effectively means public officials have narrower speech rights than private citizens, as Posner explained:

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.” Walker v. Texas Division, Sons of Confederate Veterans, Inc., supra, 135 S. Ct. at 2246; see also Rosenberger v. Rector & Visitors of the University of Virginia, supra, 515 U.S. at 833–34.

What’s more, it doesn’t matter if Trump’s threats to pull licenses or change tax statuses are hollow. (They almost certainly are: NBC, like all major networks, doesn’t even have a license to revoke. Also, the NFL chose to forgo tax-exempt status in 2015.) That’s not the point. The Second Circuit Court of Appeals stated in 2003:

[T]he fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive... What matters is the distinction between attempts to convince and attempts to coerce.

What happens when the President breaks the law?

The short answer: it’s unclear. Surprisingly, it’s possible that the president wields the power to actually pardon himself should he be charged with a crime. This wouldn’t have any effect on impeachment proceedings, however.

In an interview with CBC, constitutional law expert Jonathan Turley said that he believes Trump’s words must be accompanied by “acting in an unconstitutional manner” for Congress to consider an impeachable offense, likely as a “high crime or misdemeanor.”

“...presidents are not impeached for adopting extreme interpretations of the law,” Turley said. “They're impeached for ignoring the law,” he said.

Whether a sitting president is even subject to indictment is still an open question. The Justice Department’s Office of Legal Counsel determined first in 1973 with President Richard M. Nixon, and then in 2000 with President Bill Clinton, that the indictment or prosecution of a sitting president “would be unconstitutional because it would impermissibly interfere with the President’s ability to carry out his constitutionally assigned functions.”

It’s not that the president is above the law, as John P. Carlin notes in the Washington Post, but rather that criminal cases must be pursued after the president leaves office. However, this position has never been tested in court.