In a speech honoring the late Justice Antonin Scalia at the annual convention of the Federalist Society, Justice Samuel Alito laid out a stark vision of “constitutional fault lines.” He expressed dismay that the First Amendment, in particular, is under attack. In this regard, Justice Alito is undoubtedly correct: The First Amendment will face serious perils in the years ahead. He is, however, utterly wrong about who presents the threat.
During his talk, Justice Alito bemoaned attacks on both religious liberty and free speech. He expressed grave concern that religious liberty was under attack, saying, “It’s not dark yet, but it’s getting there.” Justice Alito also defended the Supreme Court’s decision in Citizens United, which granted corporations and unions the right to spend as much as they wished during election cycles. Specifically, he lamented that more than 40 Senators have called for a new constitutional amendment essentially overturning the Citizens United decision.
Free speech issues on campus seemed particularly troubling to Justice Alito. He sarcastically commented that he would call Justice Scalia’s Queens, New York, neighborhood a melting pot, but that “according to the powers that be at the University of California’s university system, the phrase ‘melting pot’ is a microaggression.” Justice Alito expressed special concern that “on college campuses . . . a new orthodoxy” against free speech has emerged. He called on listeners to imagine a student “wearing an article of attire supporting a political candidate who was unpopular among the students and professors by proclaiming that the United States is a great and a good country and by expressing certain traditional religious beliefs,” and asked, “how would that go over?”
It seems likely that such a scenario would probably end with one person using his First Amendment right to criticize the rebellious shirt-wearer for his support of a certain candidate. Is that not protected speech, too?
But let’s talk about the candidate, now the President-elect, to whom Justice Alito was almost certainly referring in his hypothetical. Donald Trump has made wild proclamations on innumerable topics, but for the purpose of this piece let’s focus on his thoughts about the First Amendment.
Just this week, Trump tweeted, “Nobody should be allowed to burn the American flag—if they do, there must be consequences—perhaps loss of citizenship or year in jail!” Unfortunately for the President-elect, the Supreme Court has already spoken to the issue in the famous case Texas v. Johnson. The Court ruled that flag burning was protected speech, and the majority opinion was written by the staunch liberal Justice William Brennan and joined by none other than Justice Scalia. Indeed, the conservative icon took great pride in the case and often pointed to it as an instance in which he voted against his personal preference. If President Trump were to seek a constitutional amendment to ban flag burning, it would represent a rejection of the freedoms that this country has long cherished and espoused.
Trump also has taken aim at freedom of the press, claiming he would “open up our libel laws so when they write purposely negative and horrible and false articles we can sue them and win lots of money.” Once again, the Supreme Court has already spoken to the contrary. In the court’s unanimous 1964 New York Times v. Sullivan decision, it ruled that such speech is protected by the First Amendment. Justice Scalia noted that the First Amendment “is addressed in particular to speech critical of the government.” In other words, the First Amendment was written with the exact purpose of ensuring that presidents, could be criticized ruthlessly, dogmatically, and even unfairly.
If Trump has his way, he would not merely settle for destroying the Freedom of Speech Clause of the First Amendment. He would also like to take down the Free Exercise Clause. He has called for a ban on all Muslims from entering the United States, and has made references to establishing a registry for Muslims already in the United States. His acolytes have already defended the latter idea on television, citing as precedent the infamous case Korematsu v. United States, which permitted the internment of Japanese Americans. But even Justice Scalia, whom Justice Alito and Donald Trump have praised for his conservatism, has ranked Korematsu among the worst decisions in Supreme Court history.
Justice Alito is right that our nation faces grave threats, as precious liberties protected by the First Amendment come under attack. But these grim perils do not arise from Senators who don’t believe campaign donations are equivalent to speech, nor do they derive college students clamoring for political correctness. Rather, this great danger comes from our President-elect, Donald Trump. Soon to be the most powerful man in the world, Trump will seek to quell dissent of his administration and will continue to single out the religious minorities he has picked on throughout his campaign. He will almost surely attempt to stretch the First Amendment to its breaking point.
The only question that remains is whether Justice Alito and his colleagues on the Supreme Court will stand up and stop him.