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.