Friday, September 29, 2017

Protecting Free Speech and Free Press From Motivated Malignancy

by Michael C. Dorf

[N.B. The following essay also appears on Take Care, where it is part of a symposium on defending the First Amendment against President Trump.]

In their respective contributions to this symposium, other scholars have wrestled with the question of how to distinguish between, on one hand, threats and actions taken by President Trump that implicate the First Amendment rights of private actors such as journalists and athletes, and, on the other hand, speech by Trump that does not have such implications, either because it falls within the “government speech” doctrine or because it emanates from Trump in a personal capacity. Although there are numerous borderline cases, the core cases—those that pose the clearest threat to free speech and freedom of the press—involve abuse of official power. To use an example posed in the opening essay by Anne Tindall and Ben Berwick, an IRS audit of Amazon or Jeff Bezos that is undertaken in retaliation for unfavorable coverage of the Trump administration in The Washington Post would violate the First Amendment, even though the IRS has the authority to audit Amazon and Bezos and even if the audit ultimately uncovered evidence of unpaid liability or even criminal wrongdoing.

Thus, Trump’s potential violations of free speech and press have much in common with his apparent violations of other constitutional limits. Plaintiffs in the Travel Ban litigation argue (and various courts have agreed) that Trump chose to restrict travel (initially temporarily and now permanently) in a way that has a clear and intentional disparate impact on Muslims. Likewise, plaintiffs challenging Trump’s rescission of the Deferred Action for Childhood Arrivals (DACA) program argue that he did so based on anti-Mexican animus. Just as the IRS can audit Amazon or Bezos for any number of legitimate reasons but not in retaliation for unfavorable coverage in The Washington Post, so the president has broad power over immigration, but not power that may be exercised on the basis of religious or ethnic animus.

Yet in public debate, pundits and even scholars who should know better sometimes say things like “the president has broad power over immigration” or “the president can pardon anyone he likes,” and then conclude that therefore the power in question is unlimited. That’s plainly wrong as a matter of logic. The law often allows actions taken for a wide variety of good or even merely permissible reasons but disallows those same actions if taken for an affirmatively bad reason.

Still, the fallacy that motive does not matter persists. Indeed, the Supreme Court itself has sometimes succumbed to the fallacy. For example, in United States v. O’Brien, the Court rejected a challenge to a federal statute that forbade the knowing destruction of draft cards by a young man who had burned his draft card in symbolic protest of the Vietnam War. Writing for the majority, Chief Justice Earl Warren said that the law was content-neutral, that is, that while it had the effect of circumscribing symbolic expression as applied to O’Brien, it did not target the communicative content of symbolic acts. That characterization was dubious, because various members of Congress who supported the enactment of the law had made clear their aim to target anti-War protesters. Yet the Court rejected the evidence of illicit motive as irrelevant. Citing prior cases establishing what Chief Justice Warren called a “fundamental principle of constitutional adjudication,” his opinion disavowed any authority to strike down “an otherwise constitutional statute on the basis of an alleged illicit legislative motive.”

Similar sentiments decrying subjective intent as the basis for invalidating otherwise permissible actions can be found in subsequent cases. For example, dissenting from the Court’s invalidation of a Louisiana law that forbade the teaching of evolution unless “creation science” was taught alongside it, Justice Scalia wrote in Edwards v. Aguillard that subjective motive of a legislator should not be a basis for invalidating otherwise valid legislation. Edwards was an Establishment Clause case, but the arguments Justice Scalia invoked would appear to apply across the board.

Fortunately, despite the Court’s pronouncement in O’Brien and Justice Scalia’s repetition of the argument in Edwards, modern case law appears to accept that legislation can be invalidated based on illicit purpose. In 1977, in Village of Arlington Heights v. Metrop. Housing Devp’t Corp., the Supreme Court found insufficient evidence of illicit purpose to establish a prima facie case but made clear that if there were such evidence, that plus disparate racial impact would be presumptively unconstitutional. Lower court cases have applied Arlington Heights to strike down laws based on illicit motive.

And long before the Arlington Heights ruling, constitutional doctrine made clear that an illicit executive motive could void an otherwise permissible action. The 1886 case of Yick Wo v. Hopkins is routinely cited for the proposition that a facially valid law that is enforced in a discriminatory manner can be ruled unconstitutional in application. That makes sense even if one has doubts about invalidating legislation based on illicit motive: The multi-member nature of a legislative body makes it difficult to ascertain a determinate intent; by contrast, where executive action occurs at the direction of a single official (such as the president), discerning illicit purpose proves less challenging.

Whatever the law may have been when O’Brien was decided, it is now well established that an otherwise permissible executive or legislative action can be invalid in virtue of the illicit motive for that action. To be sure, a recent Harvard Law Review article by Professor Fallon argues that the cases involving illicit legislative purpose take a somewhat inconsistent approach. However, Fallon does not critique the use of illicit purpose tests in cases involving executive action, and as I contend in a reply in the Harvard Law Review Forum, there are reasons to doubt the wisdom of his proposed alternative even with respect to legislative action. In any event, Fallon’s reform proposals are not the current law, which makes clear that in various domains—including the First Amendment—illicit intent can void otherwise permissible actions.

Admittedly, cases involving illicit intent can raise difficult questions. How does one prove intent? When can one say that the taint of illicit intent has been purged? And what is the proper remedy for an otherwise permissible action that was motivated by illicit intent, whether invidious animus or retaliation against free speech? At one point or another, each of these difficulties has been offered as a reason for concluding that illicit intent never voids an otherwise permissible action.

The case law rightly rejects that conclusion, because, notwithstanding the existence of hard cases, the alternative is worse. Constitutional provisions that proscribe invidious discrimination and censorship could be readily evaded through the pretextual application of facially neutral laws and policies.

In any event, the sorts of cases we will likely see during the Trump administration are not difficult. Trump does not use a dog whistle to signal his animus and censorial intent. He tweets and screams it for all to see and hear. In general, but especially in the current circumstances, there is no persuasive reason to shut our eyes and cover our ears.


Shag from Brookline said...

I'm waiting to see if the Tillman/Blackman constitutional scholars duo may extend their positions that the Emoluments clauses do not apply to the Office of the President to the issues addressed in Mike's and other essays on Executive speech. They might point to the 1st A's specifically proscribing Congress (but not the Executive) regarding speech, etc. The 14th A's incorporation of the 1st A (and certain other As) does not specifically proscribe the Executive, rather focusing on the States. But the Constitution has to be read as a whole as Mike and others point out in their essays.

Joe said...

I wonder if Josh Blackman stopped worrying about John Paul Stevens' public statements because Blackman argued Stevens never really retired, so it's an ethical issue.

Trump is like a law school hypo. "Well this won't happen, but let's push things, just to see where this would lead ..."

Asher Steinberg said...

Shag: I very much doubt it, it's quite far afield from their (perfectly sensible) project, but I RA'd for a professor in law school for about a week who wrote a major article arguing just that.

Shag from Brookline said...

Asher, I wasn't waiting with bated breath, rather I was actually bating, on the narrowest grounds. I understand originalists have a problem with "their (perfectly sensible) project." But perhaps some originalists might agree with the 1st A not limiting the Office of the President.

Asher Steinberg said...

I can't parse your first sentence. As to your second, originalist opinion seems to be mixed; there are Blackman and Tillman themselves, of course, and Will Baude, who has written something sympathetic to their project, on the one hand, and on the other, Prakash and Calabresi, who wrote very critical things about it nine years ago. I don't know if anyone else that would call themselves an originalist (Amar, sort of?) is publicly declared. As to the President and the First Amendment, I suspect it matters at least a little less than you think, because much of what the President and the agencies beneath him do is execute and interpret the laws, and regulations that read statutes to permit First Amendment violations, in the form of the regulations, could be challenged as giving unconstitutional meanings to the statutes. You should read Rosenkranz's article, anyway, which is rather stimulating, though I don't agree with it myself.

Shag from Brookline said...

In my first sentence, what appears as "bating" was intended to be "baiting." While I have eyesight issues, sometimes I blame spell-check and the like. I'll check after publishing this comment to see it "b-a-i-t-i-n-g" has changed.

As to originalists, I follow with care the Legal Theory Blog and especially Larry Solum's editorial comments on articles he posts on originalism. Solum praised an article with great historical detail on the meaning of emoluments back when which seemed backhandedly critical of Tillman's position. Subsequently Tillman complained about that article and backhandedly of exclusiveness of some techniques of originalism. There are many varieties of originalism. I also follow the Originalism Blog which discloses such varieties as well as disagreements among originalists.

As to the President and the 1st A, i'm sort of sticking it to textualists and their first cousin originalists. Perhaps an interesting exercise would be to come up with 1st A language that would make itlear that its proscriptions specifically apply to both the legislative and the executive branches - and perhaps the judicial branch as well, which also engages in interpretation of the Constitution?

I'll pass on the article you referenced because of eyesight issues, as I have had to pass on so many readings over the past 5 years.

Shag from Brookline said...

Another article I'll pass on is this:

"Deontological Originalism: Moral Truth, Liberty, and, Constitutional 'Due Process'"
417 Pages Posted: 29 Sep 2017 (on SSRN)
Peter Bayer
University of Nevada, Las Vegas, William S. Boyd School of Law

The Legal Theory Blog posts the really, really lengthy abstract for this 417 page article, but without any editorial comment by Larry Solum. The directions of originalism seem infinite. 417 pages might be a bit much even without my eyesight issues. The author focuses upon natural law as integrated with with originalism. This article just might be originalism's Holy Grail. I await reviews, whether of the abstract only or the entire article. Perhaps Tillman/Blackman might weave natural law and morality into their position on the original meaning of emoluments.

Joe said...

The title alone doesn't seem promising. I had not desire to read one of Balkin's tomes on liberal originalism. I still am not totally sure if he is serious or it's one big satire akin to Shag's twitting of originalists here.

The presidency is said to be a "bully pulpit," a conspicuous position that provides an opportunity to speak out and be listened to. The power of the presidency, including implied pressure, factors in there though it can be hard to prove.

The term has a certain different gloss these days.