Image of Jennifer M. Kinsley

Jennifer M. Kinsley

/ "Women in the Law" Spring Business Edition 2017

Since being elected president on November 7, 2016, Donald Trump has levied a host of threats to the First Amendment right of free speech. For example, in a pre-inauguration tweet, then President-elect Trump threatened to revoke the citizenship of any American who burned or defaced the flag, despite the fact that flag burning was declared to be protected expression nearly three decades ago.1 Since taking office, President Trump has further weakened the First Amendment by freezing the social media accounts of several federal departments and their employees2 and by terminating the employment of government officials who vocally disagreed with him, thereby chilling the right of government employees to speak out on matters of national political importance.3

Even more alarmingly, Trump previously vowed to “open up” the libel and slander laws, eliminating the constitutional protection for statements of opinion and on matters of public concern,4 and to “close up” the internet to restrict the free flow of information.5

In the wake of these threats, lawyers must take a more active role in defending our right to free expression, particularly regarding matters of political and social significance. Preserving the right of free speech is critical, not only to maintain the marketplace of ideas that the First Amendment embodies, but also to ensure that channels exist for an open and robust dialogue as we move forward in a new age of government. After all, it is through protests, rallies, and the sharing of truthful information that we are collectively able to call attention to other constitutional threats. The First Amendment acts as a gateway to the exercise of other freedoms, but aside from the right to speak freely, many other constitutional rights are at risk as well.

Lawyers must therefore be vigilant, both in calling out threats to our free speech rights and in creating strong protections for the First Amendment through judicial and extrajudicial means. These include:

  • Using state law to solidify state constitutional protection of expression. The highest courts of several states, including Oregon and Massachusetts, interpret their state constitutions to provide broader protection to expression than the First Amendment. Similar cases could be mounted in other states as well.
  • Lobbying local governmental bodies to remove existing barriers to the exercise of free speech rights and to expand their protection of political speech. Park boards, neighborhood associations, and city councils may be receptive to amending permit regulations that impact political events. These bodies may also be willing to create free speech zones on public property or repeal ordinances punishing speech in their jurisdictions.
  • Challenging federal regulations in federal court when they violate the First Amendment. The recent litigation challenging President Trump’s travel ban provides a strong model for how the federal courts can act as a check-and-balance system against unconstitutional executive orders.

Our right of free expression hangs in the balance, and along with it, the constitutional future of our democracy. In these challenging times, we must not be silent but must continue to speak out—and to speak up—for the First Amendment.

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1 David Wright, “Trump: Burn the Flag, Go to Jail,” November 29, 2016, available at http://www.cnn.com/2016/11/29/politics/donald-trump-flag-burning-penalty-proposal/; Texas v. Johnson, 419 U.S. 397 (1989).

2 “Trump Admin Institutes Media Blackout for EPA, Suspends Social Media Activity,” January 25, 2017, available at http://www.foxnews.com/politics/2017/01/25/source-trumpadmin-institutes-media-black-out-for-epa-suspends-social-media-activity.html.

3 Evan Perez and Jeremy Diamond, “Trump Fires Acting AG after She Declines to Defend Travel Ban,” January 31, 2017, available at http://www.cnn.com/2017/01/30/politics/donald-trump-immigration-order-department-of-justice/.

4 Hadas Gold, “Donald Trump: We’re going to ‘open up’ libel laws,” February 26, 2016, available at http://www.politico.com/blogs/on-media/2016/02/donald-trump-libel-laws-219866.

5 David Goldman, “Donald Trump Wants to ‘Close Up’ the Internet,” December 8, 2015, available at http://money.cnn.com/2015/12/08/technology/donald-trump-internet/.