Americans believe in freedom and oppose government censorship, in theory. But in practice, this year many American institutions have acquiesced in censorship. Censorship is the use of government power to silence a point of view. It occurs through many means, including the Trump administration’s campaign of retaliation against its perceived domestic enemies.
In a series of recent actions challenging Trump Administration actions, such as a complaint filed by the Stanford Daily student newspaper, claiming that the administration is unconstitutionally retaliating against student writers based on their writings, the Foundation for Individual Rights and Expression (FIRE) has begun its legal complaints with this compelling sentence: “In the United States of America, no one should fear a midnight knock on the door for voicing the wrong opinion.”
Americans need not acquiesce to bullying censorship. Our Constitution requires the government to treat us fairly, and a long line of First Amendment precedents bar government retaliation against citizens’ lawful expressions and beliefs. Government officials who have attempted to bully their adversaries into silence or forced obsequiousness have usually failed.
Consider an official who disliked an art museum exhibition, claiming that it “desecrated” his and others’ religious beliefs. He was entitled to those personal views. But could he use his official position to punish the institution? The answer was no in 1999, when then-New York Mayor Rudolph Giuliani objected to a modern art exhibition at the Brooklyn Museum, and then tried to cut off future funding for the museum.
A federal court found that the subsidy cut was a clear “effort to suppress expression,” and prohibited it, because it had been based on disfavored viewpoints and retaliatory motives. Among other things, the court cited the Supreme Court on the “bedrock principle” that the government may not prohibit expression simply because it finds an idea itself offensive or disagreeable.
What about taxes—can a vengeful official use the government’s power of taxation to punish (and thereby silence) enemies? Not according to the Supreme Court. When the state of Minnesota imposed special taxes on newspapers, the court held the taxes unconstitutional. Some newspaper tax cases included evidence of retaliatory purposes—the officials behind the tax didn’t like the newspapers’ editorializing—but the Supreme Court didn’t require proof of retaliatory purposes. The inherent threat of censorship made such taxes constitutionally suspect, thereby requiring justification under a strict scrutiny standard.
Next consider a mayor who didn’t like the way a local newspaper covered him. Could he ban that newspaper from City Hall, and his press conferences and events? The answer was no in 1974 when Honolulu Mayor Frank Fasi barred a Honolulu Star-Bulletin reporter from access to city hall news. A federal district court similarly enjoined the White House from barring the Associated Press from events because the Trump administration disagreed with its continued use of the name “Gulf of Mexico.” An appeals court panel reversed most of the injunction, but it distinguished between different kinds of press admissions, and noted that the administration changed its practices, and no longer totally excluded AP from press pools.
Then there is the right of legal advocacy. It is an essential right for all of us, because all other rights depend upon having lawyersAwho can assert them. Lawyers cannot be coerced, intimidated, or punished for taking unpopular positions or clients. Some years ago, former U.S. Attorney General Griffin Bell, then with the law firm of King & Spaulding, spoke out in St. Louis, about a nearby court’s reputation as a plaintiff-friendly “judicial hellhole.” The next day, Madison County Circuit Judge Nicholas G. Byron announced to the assembled lawyers in his courtroom, “Is there anyone here from King & Spaulding? I’m banning them from practicing in the county.” Judge Byron, however, had no such powers, and his comments were quickly dismissed as improvident and wrong. Indeed, the judicial code of ethics recognizes the right of every party to be heard.
Multiple courts have ruled this year that the Trump administration cannot bar lawyers from courthouses and federal buildings, or otherwise punish them for their past advocacy and protected civic activities, like pro bono work, or work for a prior administration.
Finally, can the government compel its opponents to adopt new government-imposed views (a new government-set “orthodoxy”)? This is the ultimate censorship, combining silencing and submission. It arises in the Trump administration’s efforts to impose particular views on universities, corporations, and citizens.
This was the issue in a landmark constitutional law case, in which Jehovah’s Witnesses had been forced, against their core religious beliefs, to salute the American flag. In that 1943 ruling, Justice Robert Jackson, writing for the Supreme Court, explained: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, may prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force others to confess by word or act their faith therein.”
In short, no, under this time-honored precedent and princple, the government cannot censor you, punish you, or require you to submit to its thinking, because you do not agree with it or with its favored beliefs and positions.
To the argument that decisions like this would make government weaker, Justice Jackson noted that protecting rights diminishes fears of strong government, “and by making us feel safe to live under it, makes for its better support.”
Officials have many policy options, but they must make choices based on legitimate legal and policy grounds, not hatred for their enemies or dislike of particular people, ideas, or viewpoints. Even in areas where officials exercise considerable discretion, the Supreme Court has forbidden public school library polices being set based on officials’ disapproval of certain political ideas, and has suggested that criteria for arts grants that preclude or compel results based on viewpoint discriminatory criteria would be unconstitutional.
How do we know when an action constitutes retaliatory censorship, rather than ordinary government policy choices? Sometimes officials make their motive explicit. But even when censorship and retaliatory motives aren’t expressed, a rule of evidence allows courts to examine patterns of conduct, which help explain a litigant’s actions (and even motives) in particular cases.
The rule of law – insulation from the whims of a king – is essential for security in our daily lives, commerce, and educational and cultural activities. Businesses can’t function without reliable enforceable contracts, and people can’t prosper if they are subject to arbitrary retribution for who they are, who they associate with, or what they believe.
As recent American Bar Association President William R. Bay has stressed, “The rule of law doesn’t defend itself. Lawyers do.” Indeed, every citizen can and should defend the rule of law, and there is no better first step than standing firm on freedom of expression.
Citizens and organizations threatened by retaliatory censorship can fight back, based on long-established rule-of-law principles. By fighting back, they will uphold constitutional freedoms, including First Amendment freedoms of expression and belief. As Justice Jackson noted, those fights will make us stronger, because adherence to the rule of law, and judicial enforcement of our rights to fairness and impartiality, strengthen public support for our constitutional government.
Mark Sableman is a St. Louis lawyer who has taught Censorship and Free Expression at Washington University School of Law as an adjunct professor.
