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

One 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.