The First Amendment Has Protected President Donald J. Trump

Free Speech

The First Amendment has protected the president and his sometimes over-the-top rhetoric.

Whether or not President Donald J. Trump supports freedom of speech may depend on one’s political views and whether or not one supports or opposes his policies. But one thing is certain — the First Amendment has protected the president and his sometimes over-the-top rhetoric.

Two legal cases prove the point. Consider first the case of Clifford v. Trump, a case in which Stephanie Clifford, better known as porn star Stormy Daniels, sued President Trump for tweets he made about her.

Clifford alleged that she engaged in intimate relations with the president years ago. Even more interestingly, she contended that she faced threats from an unknown man who threatened that she better leave Trump alone. Years later, Clifford worked with a sketch artist to supposedly create a facial likeness of this unknown person.

Sound a little hazy? President Trump certainly thought so and tweeted in his typical blunt fashion: “A sketch years later about a non-existent man. A total con job, playing the fake news media for fools (but they know)!”

Clifford was none too pleased with the tweets and claimed they impugned her integrity. She sued for defamation. In response, the president claimed that her lawsuit was a SLAPP suit – a strategic lawsuit against public participation, or a case designed to thwart his freedom of speech.

A federal district court agreed to dismiss her suit under California’s anti-SLAPP law. The key to the ruling was that the federal district court determined that Trump’s statements were rhetorical hyperbole — loose, figurative language that does not really constitute a false statement of fact.  The court concluded that the president’s emotionally-charged language was hyperbole, not defamation.

The second case was Nwanguma v. Trump, which arose out of a Trump campaign rally in Louisville, Ky., in November 2016. During the rally, Trump spoke for about 35 minutes. A few protestors showed up. Then-candidate Trump exclaimed, “Get ’em out of here.” In response, members of the audience assaulted the protestors and physically removed them.

The protestors later sued Trump, claiming that his speech incited imminent lawless action, an unprotected category of speech traced back to the U.S. Supreme Court’s decision in Brandenburg v. Ohio (1969).

A federal district court allowed this claim to proceed, but a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit reversed and ruled in favor of Trump.

The appeals court pointed out that Trump also specifically said, “Don’t hurt ’em” in reference to the protestors. “If words have any meaning, the admonition, ‘Don’t hurt ’em’ cannot be reasonably construed as an urging to ‘Hurt ’em’” the appeals court wrote.  The court concluded that Trump’s speech “is protected and therefore not actionable as an incitement to riot.”

The First Amendment protects much speech that may annoy, offend and even harm. It often protects all of us, including the president.

David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).

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