Tuesday, July 13, 2021

Donald Trump's Constitution: First Amendment Edition

 by Michael C. Dorf

In the fall semester, in addition to my usual first-year survey course in constitutional law, I'll be teaching an upper-level seminar titled "Donald Trump's Constitution." Here's the brief version of the description I posted for students considering enrolling:

Donald Trump’s Presidency raised many issues about the meaning and wisdom of the Constitution. This seminar will explore some of them, framed by two background questions: (1) To what extent was Trump and the movement he led (and continues to lead) a product of the U.S. constitutional system versus a local manifestation of a global phenomenon? (2) To what extent did Trump’s break with various norms expose weaknesses in the constitutional system, or do all constitutional systems depend for their survival on good-faith compliance with extra-legal norms?

I'm still tweaking the reading list, but given the latest collision between Trump and the Constitution--his absurd First Amendment class actions against Facebook and CEO Mark Zuckerberg, Twitter and its CEO, and YouTube and the Google/Alphabet CEO--I thought I'd take this opportunity to map out some thoughts on Trump, Trumpism, and the First Amendment. Before doing so, however, I'll say a few words about what I hope to do with the seminar and why.

Even if an omniscient prophet foretold that Donald Trump would not run for the presidency again in 2024 and that the movement he led would quickly fade, I would still think it important to reflect on how Trump became president, how he exercised the powers of the presidency, and his attempted subversion of democracy, in order to better understand the nature of the U.S. constitutional system. Having received no such prophecy, there is, in addition, an urgent need to explore these questions in order to prepare for what are likely to be continued assaults on democracy, liberal values, and the broader social fabric from Trump and those who share his weltanschauung.

Understanding Trumpism poses a challenge because it is less an ideology than a cult of personality, and the person around which it centers is an opportunistic narcissist with few core commitments. Trump was a "very pro-choice" social liberal for much of his life but rebranded himself as a pro-life conservative when he ran for office as a Republican. He called neo-Nazis chanting "Jews will not replace us" very fine people, even as his favorite daughter practices Judaism and he enjoys strong support from religious (but not secular) Jews. To be "fair," Trump is consistent in some respects. For example, he has long been a racist. Likewise, his protectionist views on trade do appear to be longstanding, although they seem more a product of his need to dominate and belief that other countries take advantage of American weakness than some alternative economic theory like neo-mercantilism.

Still, when one drills down on any policy Trump and Trumpists favor, one tends to find incoherence. The First Amendment is a nice illustration. In some ways, he would like to see greater restrictions on free speech. He repeatedly attempts to incite violence against reporters at his rallies. Trump also likes to threaten and occasionally bring defamation lawsuits. He dislikes First Amendment restrictions on defamation liability. When candidate Trump said in February 2016 that as president he would "open up" the nation's libel laws, he was partly displaying his ignorance: libel is a state tort, defined by state common law or superseding state legislation, over which the president has no authority. 

Trump has nonetheless pushed the envelope a bit towards making it easier for defamation plaintiffs to win their cases. One of his Supreme Court appointees, Justice Gorsuch, recently added his voice (albeit tentatively) to that of Justice Thomas in calling for the Court to re-examine the limits the First Amendment, as construed in NY Times v. Sullivan and subsequent cases, places on the ability of plaintiffs who are public officials or public figures to win defamation lawsuits. On defamation, we can count Trump a free-speech conservative.

The ultimate ideological valence of that position is unclear, however. If Fox News, Rudy Giuliani, and Sidney Powell manage to escape liability for defaming Dominion Voting Systems, it could be because Dominion will be deemed a public figure under NY Times and its progeny. "Opening up" defamation law in the way Trump wants would be potentially very harmful to his most loyal liars.

Meanwhile, Trump's suits against Facebook, Twitter, YouTube/Google, and their respective CEOs would greatly expand the scope of First Amendment protection by dramatically expanding what counts as "state action." The First Amendment, like every other provision of the Constitution other than the Thirteenth Amendment (and perhaps the Twenty-First Amendment's Section 2), limits the government but not private actors. There are contexts in which a private party acting in concert with or under threat of coercion from the government can be said to be a state actor, but nothing alleged by Trump in his lawsuits comes close to that line with respect to these defendants.

For example, the suit against Facebook alleges that the company acted at the behest of Dr. Fauci and thus the government in censoring (dangerous but admittedly protected) COVID disinformation; however, the actual emails quoted in the complaint show Facebook CEO Zuckerberg enthusiastically volunteering to assist the government, not acting under threat of any sort of sanction.

To be sure, a case can be made for subjecting big tech companies that run social media and other platforms to so-called common carrier obligations. In April, Justice Thomas suggested that doing so would not violate the First Amendment rights of the tech companies themselves. As I argued in a Verdict column at that time, his reasoning is flawed but the bottom line might be right. There is, after all, a long tradition of progressives seeking to legislate with respect to powerful private actors some version of the constitutional norms that apply to the government.

As Professor Eugene Volokh observed in a recent blog post (citing my column and the work of others), calls to impose common carrier obligations on big tech come from various points on the political spectrum. Prof Volokh's blog post excerpts a longer forthcoming article in which he lays out a tentative and partial case for the wisdom and constitutionality of legislating such common carrier obligations. To be clear, however, neither he, nor I, nor any competent constitutional law scholar thinks that the Constitution itself imposes such obligations absent legislation. Trump's lawsuit will therefore surely fail.

The only remotely interesting legal question is whether the district court should first grant the defendants' inevitable motion to dismiss under Federal Rule of Civil Procedure (FRCP) 12(b)(6) for failure to state a claim or first deny class certification under FRCP 23. Trump seeks to represent a class of everyone in the U.S. who has been "censored" by the defendants. Even assuming that common issues of law or fact are sufficiently predominant that someone could bring such a class action (a heroic assumption), Trump himself cannot possibly satisfy the requirement of FRCP 23(a)(3), which requires that the claims of the plaintiff class representative be "typical" of those of others in the class. Restrictions on the account of a sitting or former president obviously raise numerous issues beyond those presented by a typical social media user.

To say that the question whether to grant a motion to dismiss without first denying class certification is remotely interesting, however, is not to say that it's truly interesting, much less difficult. Lower courts have held (correctly in my view) that as neither class certification nor a motion to dismiss is a matter of subject matter jurisdiction, a district judge has discretion which to decide first. If I were the district judge, I'd grant the 12(b)(6) without first considering class certification, because it more fully disposes of the case. If you first deny class cert, you still need to consider the 12(b)(6) when Trump then decides to proceed on an individual basis. Granting the 12(b)(6) makes the case go away entirely, which it clearly ought to.

What's the broader lesson here? It is possible to hold subtle views about the First Amendment, to think that existing doctrine is too protective of speech in some respects and insufficiently protective in others. My colleague Steve Shiffrin has argued persuasively along such lines. Trump's view of the First Amendment is nothing like that. He believes the First Amendment should provide the strongest possible protection for him and people who praise him, while providing minimal or no protection for his critics. Of course his lawyers--even the shall-we-say-not-exactly-A-list lawyers he hired for this latest round of frivolous litigation--do not put it quite that way. In any particular context, they espouse seemingly general principles. But the overall picture is incoherent except when viewed through the lens of Trump's narrow self-interest.

That said, it is worth taking seriously some of the claims Trump and his legal team promote, because they may have independent virtues. I would not want to see NY Times v. Sullivan overruled, but I share some of the misgivings about the cases that extend its "actual malice" standard to statements made about mere public figures. So too, there are reasons one might want to broaden the scope of the state action doctrine or apply common carrier obligations to social media platforms. A position advanced for nefarious purposes by a scoundrel might nonetheless be sound.

I'll conclude for now by offering some resistance to the tendency of legal scholars (or at least my tendency) to treat just about anything as a potential source of interesting questions to ponder. One can and should acknowledge that bad people acting in bad faith can be the source of good ideas without immediately skipping over the badness to evaluation of the ideas. For sure, let's think about whether defamation liability is too limited or whether to expand the concept of state action, but let's also not lose sight of the fact that Donald Trump and the people who support or tolerate him as the standard-bearer of one of the two major parties in the United States are working to destroy the very legal system that enables us to care about difficult questions. If Trump and Trumpism succeed, we won't have the luxury of asking what practices best uphold the ideals of liberal democracy; we will be worried about whether we can restore it.


former student said...

Honestly, I don't get the difficulty in understanding Trump's appeal to non-college educated voters in the former industrial heartland, exurban, and rural areas. He ran as anti-trade (contra traditional Bush Republican and Clinton Democrat views), anti-immigration (contra traditional Bush Republican and DNC views), pro-entitlements (contra traditional Bush Republican and Biden Democrat views), and promising traditional infrastructure spending (that he did not deliver). All of these things have very long-standing appeal to blue collar workers and are traditional labor policies. He was also anti-war, which is a view that the people who send their kids to the military came to hold after years of pointless war.

On top of that, his personality held tremendous appeal to those who wanted to stick it to elites, because he rejects elite manners. What is really striking to me is the desperate attempt by all elites to deny or ignore these obvious things in the search to demonize Trump's voters. Elites destroyed the country by shipping the US's manufacturing base to China -- recklessly, in ways that were obviously going to harm US workers and US interests, and created voodoo economics theories to pretend otherwise -- transferred wealth from working class to professional and certification-class jobs through low-skilled and unrestrained illegal immigration -- again, this transfer of wealth effected by immigration is obvious and was backed by voodoo economics theories -- and you act surprised that there was eventual pushback. These same people see the climate hysteria for what is is, also: A mission to destroy the construction trades and unions that tend to our energy infrastructure by replacing it with Chinese solar panels, Chinese turbines, Chinese batteries, and a sprawling, public-forest-destroying, impossible-to-unionize (because of its sprawling nature with isolated small groups of workers) "green" infrastructure of windmills and solar panels and battery farms.

It just is what it is. You are proposing a class built around ridiculous and obvious ruling-class propaganda. What is so shocking to me is that you might believe it.

former student said...

Why do timber workers earn less than coal miners and boilermakers and pipefitters? Because the work is impossible to unionize.

Which job more closely resembles the jobs created by "green" energy initiatives? Timber workers.

Who benefits from replacing a bunch of skilled, clustered laborers with low-skilled, geographically dispersed laborers? Not the skilled laborers.

Michael C. Dorf said...

In response to "former student": I'm familiar with the view that Trump and Trumpism are a localized response to real and perceived failures of neoliberalism. That's right there in the description of the aims of the seminar. The question is not what led to rejection of neoliberalism but why its rejection takes the anti-democratic illiberal form it does (as opposed to say, Bernie Sanders-style democratic socialism). Nothing in my post or the seminar aims at problematizing legitimate policy debate, which is what nearly everything you discuss here is about. If someone with the policy views you attribute to Trump (some of which he may actually hold, others of which he feigned) had been president and promoted those policies through ordinary means, I wouldn't be teaching this seminar.

former student said...

I think this paragraph suggests that your aim is to problematize legitimate debate:

"Even if an omniscient prophet foretold that Donald Trump would not run for the presidency again in 2024 and that the movement he led would quickly fade, I would still think it important to reflect on how Trump became president, how he exercised the powers of the presidency, and his attempted subversion of democracy, in order to better understand the nature of the U.S. constitutional system. Having received no such prophecy, there is, in addition, an urgent need to explore these questions in order to prepare for what are likely to be continued assaults on democracy, liberal values, and the broader social fabric from Trump and those who share his weltanschauung."

Anyway, the list of problems is ridiculously one-sided. Voters elected Trump and the elites immediately spiraled into an out-of-control revolt that includes, as one prong of the attack, this kind of casual suggestion that Trump is an assault on democracy and liberal values because, among other things, he dared to -- what? -- bring a lawsuit against Facebook and other tech monopolies? How can a lawsuit, however bad, ever be an assault on democracy? And it is not even a bad lawsuit, even if his lawyers did not make his best case. He might lose, but litigating and losing is not an assault on democracy.

Trump was handed two Reichstag fires in 2020 -- covid and the summer riots -- and he declined to use either as a pretense to persecute or punish his enemies or aggregate power, while the Democratic Party has so far done the opposite.

So framing Trump and "those who share his weltanschauung" as the ones assaulting democracy, and framing the course as one for those who wish to understand future assaults on democracy, strikes me as propaganda. And it hardly matters at all what Trump himself believed or did not believe. What matters is why the voters voted for him, what is animating them.

Why not Bernie Sanders? Seriously? Bernie in 2016 could maybe appeal to workers. But Bernie 2020 was all about open borders and the green new deal, things the billionaire and professional classes favor, not workers, and for good reasons -- they are assaults on the working class. I explained this, I thought, but you act like there is some big question here. It isn't because of some kind of authoritarian or racist streak. It is because their material interests are lined up differently on issues of low-skill immigration and the reorganization of our energy infrastructure than the material interests of the college credentialed classes.

They also have differences down the line about other important considerations, such as prison reform and police reform. In general, of course working class people are going to support managing the surplus population -- if there must be a surplus population -- by giving the jobs to working class people as cops and COs rather than social workers and community activists who can submit grant applications. And of course billionaires and other wealthy voters and influencers are going to prefer an ever greater surplus population of people with informal ties to the workforce (illegal immigrants, released convicts, etc.). It's just good for business, and good for keeping costs low at restaurants, home health care workers, lawn care, all of it.

Michael C. Dorf said...

As a monument to free speech in a forum in which I surely have the power not to permit it, I shall leave for all to read the comments of former student -- which express outrage and incredulity at the suggestion that Trump and his supporters assaulted democracy without any acknowledgement that January 6 occurred.

former student said...

So your class is going to be about how to use a single riot as a Reichstag fire to discredit opposing arguments (including my own) and thereby duck any meaningful engagement with your political opponents? Classic.

former student said...

Also, the occasion for your post was his lawsuit against Facebook, not the capitol riot. Riots have been far too common for the 14 months, but only one side is using riots as an excuse to shut down debate and imprison opponents.

Tim Zick said...

Mike, this sounds like a fascinating course. Of course, I'm biased. I published a book about Trump and the First Amendment, The First Amendment in the Trump Era (OUP 2019). I've been worried about its shelf life. But it's been translated into Japanese and published in Japan (go figure). I'm collecting examples for a new Introduction just in case . . . although it seems clear the "Trump Era" is not yet over. I agree (a) Trump's actions and statements implicate some important First Amendment concerns and (b) he didn't care about those concerns so much as how he could use his power to silence critics.

Jason S. Marks said...


I love the seminar idea and wish I had the chance to participate, even though thirty years removed from law school.

I would suggest that if the core of your focus seeks the link between the First Amendment and the rise of Trump, I think you should add a portion that addresses our failure to properly regulate speed for elections, including the false idea (in my belief) that money should be speech and subject to little if any regulation, and the rise of internet platforms that give too much power to one candidate. To what extent could the First Amendment support hard limits on financial contributions or even public funding of campaigns? To what extent can money as access become a First Amendment problem for all candidates, those with too much access and those with too little? Can the government, consistent with the First Amendment, assure that private actors with large social media platforms allow for equal access and standards of behavior for all candidates? Can the government, consistent with the First Amendment, commandeer a private forum to make it a public forum (this gets to Prof Volokh's piece)? Can the government use its antitrust power, consistent with the First Amendment, to require monopolistic or oligopolic social media platforms to break themselves up or agree to regulations that minimize the differential access to social media? Is metadata a public good that should be shared in a campaign? With regard to content and incitement, can the government regulate, consistent with the First Amendment, social media platforms to insist on reporting threats that could be clear and present dangers, or be required to work with law enforcement to eliminate real threats to avoid another January 6?

Those would be my fun suggestions...I have some ideas about answers, but hey, we would have to co-teach the course if I write the entire syllabus. :-)

Michael C. Dorf said...

Thanks to Tim and Jason. Just to be clear, the seminar will cover a wide range of topics, not just the First Amendment/speech, so there won't be room for all of that.

On another note, I should also be clear that my commitment to the free speech of commenters on this blog will not track the Supreme Court's First Amendment doctrine in all respects. Thus, I reserve the right to remove offensive content, even though I often don't. One question with which I've sometimes grappled is whether to permit or delete anonymous and pseudonymous comments (protected under the 1st Am per MacIntyre v. Ohio Elections Comm'n). My resolution heretofore has been to allow them on the ground that they often make useful contributions. I'm now reconsidering.

Joe said...

"One question with which I've sometimes grappled is whether to permit or delete anonymous and pseudonymous comments"

I rather not use my own name here. But, that's your call.

My experience though is that people who have used their own names have had similar content. See, e.g., two infamous contributors to comment threads at Balkanization Blog, which no longer allows comments in part because of "thread wars" arising from their comments.

I guess the person can be required to register with the blog owner with a real name but not use it when commenting.

Michael A Livingston said...

You could invite Trump to appear as a guest lecturer—it would certainly make for good theatre— although my guess is that with his current legal problems he will not be anxious to travel to New York State.

Elon said...

I do think there's a sort of interesting question about whether the Facebook defendants can shoehorn Trump's wacky allegations into the Florida anti-SLAPP statute's definition of "speech in connection with public issues" and bring a motion to strike. On one view, the gravamen of Trump's complaint is concerned with Facebook's speech, particularly when labeling posts as false; if you feel like thinking big thoughts, maybe Facebook's algorithm is itself a form of speech.

I also think Dominion stands a decent chance of success against some of the defendants in their defamation case even if Dominion does have to show actual malice, since some of the statements were made with apparent reckless disregard for the truth, which ought to clear the constitutional actual malice hurdle. How is Rudy going to explain that his statements about the voting machines had some basis in fact?

I think I share your misgivings about the actual malice standard applying to public figures because I'm not convinced by those cases' justifications, even though the rule seems pretty sensible when you consider someone like, oh, say, Donald Trump. I did remark, though, on the fact that you hold this view even as the proprietor of a blog that, on occasion, traffics in statements about public figures that are defamatory per se (but made without constitutional actual malice). I guess if I made a statement on my blog like "Trump lacks the moral fiber to make an adequate president" I'd prefer to defend it in court for lack of actual malice than under the nebulous opinion standards.