The First Amendment: Without a Friend in the 2016 Election Cycle?


With Election Day less than two weeks away, it’s an interesting time for the First Amendment. Unlike the Second Amendment where party lines appear strong, the 2016 presidential candidates’ stance on First Amendment issues and the press is complex, highly individualized, and sometimes at odds with party association.

Republican Nominee Donald Trump’s disdain for the media is no secret. Trump has referred to the press as “dishonest” and “absolute scum.”1  He has banned news outlets such as The Washington Post, POLITICO, The Huffington Post, Buzzfeed, and The Daily Beast from attending his events. Trump has proclaimed that, if elected President, he will open up libel laws “[s]o when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”2  For the media and those of us who defend them, these are truly chilling words. They also turned out to be prescient, as Trump recently threatened to file a lawsuit against The New York Times for its story featuring two women who said Trump made unwanted advances. Finally, Trump has infamously refused to provide his tax returns to the press and public—breaking a more than 40-year tradition by GOP nominees.

Across the aisle, Democratic Nominee Hillary Clinton’s relationship with the media is also strained.  Clinton was widely criticized earlier this year for going many months without holding a press conference—a stretch which prompted several media outlets to comment on her “press conference phobia.”3 In addition, Clinton’s use of a private email server to conduct government business as Secretary of State has been characterized as exploiting a loophole in the Freedom of Information Act (“FOIA”) because it “neither authorizes nor requires agencies to search for Federal records in personal email accounts maintained on private servers.”4  Finally, during Clinton’s tenure, the State Department was reported to “regularly fail[] to respond to FOIA requests in a timely or complete manner” and often provide inaccurate responses.5

Perhaps no discussion on politics and free speech would be complete without mentioning the now-famous Citizens United v. FEC.  There the Court considered several issues, including whether the restrictions on corporate political contributions under 2 U.S.C. §441b (a federal statute containing criminal sanctions) applied to the documentary Hillary, a film created by a non-profit corporation called Citizens United.  As one might guess, Hillary was critical of then-Senator Clinton who was running for the Democratic Party’s presidential nomination against Barack Obama. Citizens United sought to televise the documentary on video-demand and to purchase advertisements on both cable and broadcast television 30 days prior to the primary election. The Court held that Section 441b’s restrictions against doing so were invalid.

While campaigning in the current election cycle, Clinton has called for a constitutional amendment that would overturn Citizens United.  She has called it “one of the worst Supreme Court decisions in our country’s history” and stated that “[t]he idea … that money is speech turns our Constitution upside down … the Supreme Court has given the wealthiest Americans even greater power to affect what happens in our democracy.”6  The irony that such an amendment would effectively censor political films critical of Clinton (and other candidates) close to election-time appears to be mostly lost on the public.

While many Republicans hailed Citizens United as a decision that restored free speech rights improperly infringed, Republican presidential nominee Trump’s record on the issue is a bit more complex.  Last year during the Republican primary, Trump criticized Citizens United as a “total phony deal” that allowed super-PACs to raise vast sums of money for a candidate.  Yet in September 2016, Trump hired David Bossie, the recent President of Citizens United, as his deputy campaign manager.  While the hiring of Bossie may have had more to do with his long history of investigating the Clintons, there is still some tension with Trump’s prior disavowal of the super-PACs unleashed by the very same organization.

Given each candidates’ strained relationship with the press and poor history with open access to records, the 2016 election-cycle has left us wondering whether the First Amendment has been left without a friend in the highest of places.

If you have any questions about this article, contact Shannon Teicher at (214) 953-5987 or steicher@jw.com.

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CNN, Trump’s jabs at the press: A compilation, at http://www.cnn.com/videos/cnnmoney/2016/05/31/donald-trump-media-attacks-cnnmoney.cnn (last visited Aug. 15, 2016).

2 Hadas Gold, Politico, Donald Trump: We’re going to ‘open up’ libel laws, Feb. 26, 2016, at http://www.politico.com/blogs/on-media/2016/02/donald-trump-libel-laws-219866 (last visited Aug. 15, 2016).

3 See e.g., Jack Shafer, Politico, Hillary Clinton’s Press Conference Phobia, July 10, 2016, at http://www.politico.com/magazine/story/2016/07/hillary-clintons-press-conference-phobia-214026 (last visited Aug. 15, 2016).

4 Catherine Herridge and Pamela K. Browne, Fox News, Clinton’s private email account exploits FOIA loophole, report says, Jan. 7, 2016, at http://www.foxnews.com/politics/2016/01/07/clintons-private-email-account-exploits-foia-loophole-report-says.html (last visited Aug. 21, 2016).

5 Taylor Wofford, Newsweek, State Department Flubbed FOIA Request of Hillary Clinton’s Private Email Server, Jan. 1, 2016, at http://www.newsweek.com/hillary-clinton-private-email-server-412839 (last visited Aug. 21, 2016).

6 Hillary Clinton, Speech at the University of Wisconsin–Madison (March 29, 2016) (transcript available at https://www.hillaryclinton.com/post/remarks-supreme-court-and-whats-stake-2016-election/).

*I appreciate the contributions of Shelisa Brock.