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 ...