[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.