Are we letting Trump rewrite the First Amendment?
By “we” I mean the country in general, not each of us individually, and by the First Amendment I refer particularly to everything following the first two clauses, which deal with religion the (“Establishment” and “Free Exercise” clauses).
Again and again, in resisting gag orders in various courts, Trump is pointing to his First Amendment rights as a candidate. D. John Sauer, an attorney for Trump and the former solicitor general of Missouri, told the appeals court that the gag order is "a filter for core political speech" between the former president and voters during the campaign because there is "near complete overlap between the issues in the political campaign and the issues in the case." To some extent, courts seem to be giving weight to this argument, although ultimately ruling against him. The defense’s position that no limits may be placed on Defendant’s speech because he is engaged in a political campaign is untenable, and the cases it cites do not so hold. Thus did Judge Chutkin reject Trump’s argument. However, in their overly-scrupulous treatment of the issue, courts allow this argument to appear important.
I think this turns the First Amendment on its head. The first ten amendments, or Bill of Rights, concentrates on rights of the people, which are nearly all individual rights. (Exceptions to this are the Tenth Amendment, reserving unenumerated rights to the states or the people, and, arguably, the Second Amendment, which ties the right of the people to bear arms to the need for a militia, in a manner that remains in dispute.)
The First Amendment free speech and assembly clauses promote democracy by permitting the entire public to openly discuss, promote, and criticize the government and candidates for office. This is a rejection of totalitarian or anti-democratic systems where it is the government or monarchy that controls speech. If anything, it imposes a higher duty on the government to regulate its own speech. It is disturbing when official declarations promote clear falsehoods. While individuals have the right of free speech, including their right to express the widest range of opinions, we do expect the government to be more measured in its statements. Inherent in its duty to “promote the common good” is a duty to provide the public with accurate information, as well as a duty to avoid harmful speech. I would not say that those duties attach to candidates as well as actual officeholders, but I would say that, if anything, candidates should be more rather than less restricted in their right of free speech, compared to the average person in the street.
This is why I find Trump's argument so offensive when he claims that his First Amendment rights as a candidate for office are being restricted. He has no special rights as a candidate. I concede that his rights are equal to mine, but at the same time they are no greater than those of any individual in this country. He has the same rights as each litigant or criminal defendant facing trial, but none greater. Any person coming before a court who faces a gag order can argue it should be balanced against their First Amendment rights, but nobody should argue for more favorable treatment as a candidate.
There is nothing magical about running for office. The First Amendment treats us all equally. It is disappointing that courts even mention Trump's “rights as a candidate,” since such special rights simply do not exist.