“Hello racism, hello capitalism, hello climate change, hello war, hello end of days.”
This was the measured response by singer-songwriter Paloma Faith to Donald Trump’s victory in the US presidential election – and typical of the meltdown suffered by woke progressives on both sides of the Atlantic. (“Feel like I’m going to cry for the rest of my life,” tweeted the Scottish TV presenter Dawn O’Porter – and there’s plenty more here.)
In one of the greatest political comebacks of all time, Trump will become the 47th President of the United States after two impeachments, four criminal prosecutions, a felony conviction and two assassination attempts. There’s also the looming (although probably now “dead in the water”) prosecutions for his alleged attempts to overturn the 2020 election result.
Despite all this, Trump was the first Republican presidential candidate to win the popular vote since George W Bush in 2004. And with his party gaining control of the Senate and expected to do the same in the House of Representatives, Republican lawmakers have the chance to shape the political landscape for years to come. But what are the implications for free speech? Are Ms Faith and her fellow liberal luvvies right to think that America will “be saying goodbye” to it?
Well, not according to Elon Musk. A few weeks ago, the multi-billionaire owner of X (formerly Twitter), talked up Trump’s civil liberties credentials, urging Americans to vote for him in the “most important election of our lifetime”, because the Democrats “want to take away your freedom of speech”. It’s surely a good sign that Trump has already indicated he wants to give Musk a job in his administration.
In fact though, when it comes to the Donald’s approach to free speech, things are more nuanced than either side would care to admit. While his classically liberal instincts sometimes serve to protect the First Amendment rights of all Americans, too often they are overridden by his determination to fight culture wars or by a seemingly narcissistic fixation with settling personal vendettas.
On the plus side, Trump signed an executive order in March 2019, linking federal research funding for academic institutions to them upholding stated policies on free speech and promoting academic freedom. He has also long opposed the censorship of lawful speech on social media. During his first presidency, another executive order aimed to limit the legal protections which allowed social media platforms to censor content without being treated as publishers.
Trump’s argument was that platforms such as X, Facebook and Instagram didn’t deserve these protections, since they were now acting as publishers, removing content by taking “actions (often contrary to their stated terms of service) to stifle viewpoints with which they do not agree”.
Likewise, he supported the release of the Twitter Files, a series of internal communications that expose shocking levels of collusion between the Biden-Harris administration and Big Tech. They also highlight the fact that the weaponisation of concepts like ‘misinformation’ and ‘disinformation’ is now one of the most pernicious threats to free speech faced by western democracies.
When it comes to the ‘traditional’ news organisations, however, Trump has not been such a staunch free speech defender. He has, for example, said on several occasions that the landmark Supreme Court decision in New York Times Co. v. Sullivan (1964) should be “revisited”.
This ruling ensures that litigious public figures suing for defamation must meet the extremely high standard of proving “actual malice” – i.e., that the publisher being sued knew the story was false or acted with reckless disregard for the truth. It’s not enough for the stories just to be untrue. In recognising that “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive’”, the Supreme Court has long shielded the press from intimidation through frivolous lawsuits.
But in a court filing in 2022, Trump argued “it seems unlikely that at the time Sullivan’s actual malice standard was pronounced, the Court envisioned a news outlet which seek [sic] to indoctrinate its audience rather than inform”.
During a 2016 campaign rally he also promised that as president he would “open up” libel laws, so that “when they write purposely negative and horrible and false articles, we can sue them and win lots of money”.
And then there’s his recent decision to launch a $10 billion lawsuit against CBS News alleging that its editing of a 60 Minutes interview with Kamala Harris was deceptive and, by casting her in a better light than if they’d broadcast the original, amounted to “election interference”. This, too, indicates his desire to challenge media safeguards established under Sullivan.
As the US free speech campaign group Foundation for Individual Rights and Expression has observed, “if those editorial decisions could give rise to ruinous litigation, there would be no broadcast journalism”.
During the past two years, the President-elect has made at least 15 calls for the Federal Communications Commission (FCC) to revoke the broadcast licenses of national television stations. He has also said that Comcast – the parent company of NBC News and MSNBC – should be “investigated for its ‘Country Threatening Treason’”.
“I say up front, openly, and proudly,” he continued, “that when I WIN the Presidency of the United States, they and others of the LameStream Media will be thoroughly scrutinised for their knowingly dishonest and corrupt coverage of people, things and events.”
Of course, launching tirades against the press is permissible under the First Amendment, but no president should use the office to suppress or punish speech he doesn’t like (something the Biden-Harris administration was guilty of, at least when it came to social media).
A 2015 judicial opinion by the (now retired) appeal court judge Richard Posnermakes clear that “a public official who tries to shut down an avenue of expression of ideas and opinions through actual or threatened imposition of government power or sanction is violating the First Amendment”.
Worryingly, Trump has form in this regard. During his first term, he repeatedly attacked the Washington Post, and threatened to target its owner Jeff Bezos’s biggest holding, Amazon. In 2018, he ordered the US Postal Service to review the rates it charges Amazon for delivery.
Is that why the normally left-leaning paper declined to endorse a presidential candidate this time around? Fear of upsetting Trump if it endorsed Kamala? Either way, the potential for words and deeds of this kind to have a chilling effect on the media is obvious.
Both during his 2016 presidential campaign and while in office, Trump also proposed the criminalisation of flag-burning – considered protected free speech under the First Amendment according to two key Supreme Court cases: Texas v. Johnson (1989) and United States v. Eichman (1990). He repeated the suggestion at his Madison Square Garden rally last month, telling the crowd: “I would like to put in a bill: if you burn the American flag, one year in jail.”
The burning of flags, or any politically loaded cultural object, is undoubtedly crude, provocative and a poor substitute for reasoned debate. But free speech campaigners would be quick to reply that, when conducted by private individuals, these acts are non-violent symbolic ways of conveying a message – which is, of course, the essence of free expression.
So, Trump’s record on free speech is a mixed bag. But that’s not to say he poses a bigger threat to it than his opponent would have done, particularly in light of Tim Walz’s comment that the First Amendment doesn’t protect ‘misinformation’ or ‘hate speech’. In fact, it does – at least, as far as the current Supreme Court justices are concerned. The risk, had Kamala been elected and a vacancy arisen on the Supreme Court, is that she would have appointed a judge who shared her vice-president’s views on the First Amendment.
