All Americans on the board will know that that phrase begins the first Amendment that secures–or is supposed to–the freedom of religion and of the press. It does not say one word about what the chief executive may do. Of course the framers naively believed that the executive powers were limited to executing laws passed by congress. Of course that ship sailed long ago. Two of its captains were Abe Lincoln and FDR. What is to stop Trump from declaring that on account of the national emergency, he must shut down the New York Times to stop them from spreading lies, under his emergency powers? And then arguing in court that freedom of the press limits congress, not the president since the first amendment says nothing about the executive.
Case law extends the 1st Amendment protections to include all branches of Gov’t.
What authority would he use to do this? I can’t think of any executive emergency powers that covers shutting down publishers or newspapers. And I would think that whatever law did enable that would be unconstitutional under the first amendment.
Almost all of Trump’s expansions of executive authority have at least had some basis in an underlying law. Often those have been stretched and bent, and courts have struck some of them down. But he hasn’t, AFAIK, just said “I’m doing this on my own prerogative and nobody can stop me”. The closest might be the changes to birthright citizenship, since that does seem to run afoul of both Congressional law and constitutional law.
And as @CoolHandCox points out, Courts have routinely applied first amendment protection to executive actions as well. But even if a textualist SCOTUS changed that (to limit it only to Congressional action) any enabling act that allowed the POTUS to limit free speech/press would run foul of the first amendment anyway.
I think it’s been answered, but to play devil’s advocate because there is something to this, I’ll throw this out there.
The above responses apply to normal civilian law. Free speech protections are robust and even real national emergencies don’t impose on our 1st amendment rights. However military law is different. Under military law, free speech is and should be suppressed (you don’t want to hear the military’s thoughts on politics, etc.). Order and discipline are above free speech under military law.
So, you manufacture a scenario where the President declares martial law and sends in the troops. You’re now operating under martial/miliary law and my post above doesn’t matter too much.
It’s extremely implausible and unclear whether the President has the authority to declare martial law and under what conditions. Even the civil war wasn’t bad enough for it to be allowed (as long as the Art III civilian courts can function, you can’t use military courts/law) - civilian law/courts should always be available unless it’s really just not possible anymore. But it’s not super clear cut on all this, not like my civilian law response above, and that is more the point. You just need to be able to debate it to buy some time. You prep the country for years the country is out of control, manufacture the situation during the election that we need martial law, and hope people don’t care enough and then it just happens.
Anyways, implausible and oversimplified, and it should not be allowed in a manufactured situation, but that would be the path because it could create the issue on which court actually has jurisdiction to hear the complaint from the press/NY Times (civilian or military).
Late: I’m not really sure how you could practically control free speech in 2025, but legally, that’s how it could go.
The trouble is that Trump doesn’t care what the laws are; Scotus doesn’t care about precedent and they claim to follow original intent which limited congress on this, but not the executive.
Courts care about laws. You’re glossing over where Trump will derive his power to declare an emergency. NYT will immediately sue and Trump will need to point to something that gives him the power to shut down the press. There is nothing. Case dismissed.
Trump cares little about courts. Except maybe Scotus who are thoroughly in his pocket. That’s why I titled the thread this way. Constitution says not a word about the executive and free speech.
The Sedition Act of 1798. It expired in 1801 but I’m sure someone will convince him an Executive Order will reactivate it.
You don’t even need that. SCOTUS ruled in Korematsu that national security trumps constitutional rights. So as long as the President can link the two he has a landmark decision to back him up.
I understand. You’re broader point is fare. Assuming there is a gap (void) in the law/constitution, can the President do what he wants?
The answer is it depends. The Youngstown case handles this question. Very basically, when there is a gap in the law, and the President does something and continues to do it and Congress does nothing to stop him (they leave the gap), then the Supreme Court would find the President has a constitutional right to do it. However, if there is a gap, and the President does something, but Congress reacts and makes a law that says that thing is unlawful (they fill the gap), then the Supreme Court would find the President does not have a right to do it and never did.
Here, assuming there is a gap as you suggest, Congress has made laws on what the President can do in an emergency. Those laws say the President can do a lot of things but the President cannot suspend the 1st Amendment. It’s a bedrock principle of American democracy.
Re: Sedition Act, etc. that says he can do it. Those laws (or the parts that matter), have been repealed and invalidated as a violation of Free Speech.
Re: Korematsu. It’s not valid case law and it did not involve the 1st Amendment, just due process.
So that leaves Trump with no valid power to suppress the 1st Amendment. There is no gap. It has been thought about, and litigated, and addressed for a long time.
There are no limits to what might go through Trump’s head and out his mouth, to be sure.
In normal times, the military would follow a president into the abyss. However, I feel better right now since he managed to piss off the entire military. If he expects them to back him up when closing down the newspapers he might be very surprised at who’s no longer marching behind him.