Free Speech Legality of President Trump's Actions

Can Trump Get Rid of Anonymous Sources?

On Friday, speaking at the Conservative Political Action Conference (CPAC), President Trump claimed that the media should not be allowed to cite anonymous sources because newspapers often “make up” such sources. He then said, “I love the First Amendment — nobody loves it more than me.”

Well, since the President loves the First Amendment, why don’t we talk about it?

What does the First Amendment say?
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

What does it mean?
In a previous post, we touched upon the freedom of religion included in the First Amendment.  But the First Amendment also contains other rights, like freedom of speech. Freedom of speech means that we have the right to voice our opinions without censorship or fear of governmental retaliation.

However, there are limits to our freedom of speech. The Supreme Court has ruled that our freedom of speech does not include a right to incite actions that would harm others, like jokingly screaming “fire” in a public space. Obscene speech is also not protected by the First Amendment (like child pornography).

To Mr. Trump’s dismay, one should note that the Supreme Court has recognized that the freedom of speech includes freedom of the press. His comments at the CPAC on Friday show that he either does not know that or does not “love” the First Amendment as much as he says.

Can Trump forbid newspapers from citing anonymous sources?
No, he can’t. There are two important cases decided by the Supreme Court on this topic. The first one, Talley v. California, was decided in 1960 and dealt with a Los Angeles city ordinance which prohibited the distribution of flyers if the flyers did not include the name of the person who printed or manufactured the flyer. In other words, the city of LA was forbidding “anonymous” flyers.

The Court held that this law was illegal and the Court made sure to explain the importance of anonymous speech. The Court said that anonymous books and pamphlets have “played an important role in the progress of mankind” and that “persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”

In another case in 1995, McIntyre v. Ohio Elections Commission, the Supreme Court ruled that a statute that prohibited anonymous political literature was unconstitutional. That law violated the First Amendment, the Court said: “Under our Constitution, anonymous pamphleteering is not pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent; anonymity is a shield from the tyranny of the majority.”

Even more on point, in New York Times Co. v. United States, President Nixon tried to prohibit newspapers from publishing classified information. The Supreme Court disagreed with Nixon and ruled that the First Amendment protected the right of the New York Times to publish the classified information it had obtained through leaks.

Lesson of the week?
On Friday, President Trump promised to “do something” about newspapers publishing information based on anonymous sources. We understand President Trump’s concerns: he doesn’t want to feel threatened and he might be scared of what these anonymous sources could reveal to the people. After all, he hasn’t been the most transparent President… but his lawyers should warn him that our courts protect anonymous speech and particularly in relation to the freedom of the press. Thus, if he is really going to “do something” to censor this and infringe on the First Amendment, then a court will most likely overturn that… just like they did with the travel ban executive order.



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