The Trump Administration’s War on Free Speech, the McCarthy Analogy, and the Limits of the First Amendment-- Part Two

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Genevieve Lakier

[This is Part Two of a two part essay]

3. The Problematic Immigration Law Precedents, and the Incomplete Project of Anti-McCarthyism

The same, happy story is not true of all aspects of First Amendment law, however.  In other respects, contemporary free speech doctrine does not provide significantly more protection against political repression than would have been true in the 1950s. This is because, despite the Court’s explicit rejection of the kind of ‘ad hoc balancing’ that was a hallmark of the First Amendment jurisprudence of the 1950s, the Court did not in subsequent decades reject all of the doctrinal features of First Amendment law that, during the Second Red Scare, enabled the government to chill the speech of political dissenters without facing significant constitutional constraint.

Most notably, the Court did not reject—and still has not rejected—the McCarthy Era precedents that more or less denied the possibility of First Amendment constraints on the exercise of the deportation power, even when this power was exercised in a viewpoint discriminatory manner. To the contrary: in the decades after the Second Red Scare,  the Court more or less doubled down on immigration law’s First Amendment exceptionalism, notwithstanding plenty of evidence that both during the McCarthy Era and in the decades after, the government frequently used its immigration powers to do what the First Amendment was intended to prevent: namely, inoculate itself from criticism, and discriminate against speakers in public discourse because of their views.

It is worth asking why the Court did not see fit to correct what already by the early 1950s some of the justices clearly recognized as a problematic gap in the skein of free speech protections. One of the reasons surely has to be the Court’s enduring belief that vibrant protection for domestic freedom of speech can coexist with largely unconstrained executive power to deport or deny entrance to foreign speakers. This is a mistaken belief. As we now understand very well, and judges who lived through the Second Red Scare should have understood, policies to deport migrants or exclude them from the United States because of their speech can have profound effects on the domestic speech environment—indeed, are intended to. They do not shore up the United States’ democratic or liberal character, in other words, but instead fatally undermine it.

This was a lesson that courts did not learn last time around, perhaps due to the constraints that the Cold War imposed on the judiciary’s willingness to rein in executive-branch anti-Communism.  It is, however, a lesson that the Trump administration’s deportation policy may finally be making it impossible for courts to ignore. It is noteworthy that in the past several weeks, at least two courts have rejected the relevancy of the McCarthy Era deportation precedents, given their inconsistency with the general principles that otherwise undergird contemporary First Amendment law. This suggests that the administration’s willingness to take the powers vested it by the McCarthy Era precedents to their logical extreme may finally be exposing the hollowness of the presuppositions they rest on.  If so, the repetition—first as tragedy, the second time as tragedy tinged with farce—of practices of state repression we have seen many times before may provide an important opportunity for courts to do what they should have done a long time ago: namely reject immigration law’s First Amendment exceptionalism.

Of course, it also may not.  So far, the rejection of the McCarthy Era precedents has been articulated only by district court judges. Neither the federal courts of appeal nor the Supreme Court have properly weighed in. And the modern Supreme Court does not have a good track record of recognizing the threat that restrictions on speech by or to foreign speakers pose to free speech values.

Much remains to be known, therefore, about whether and to what extent we are in fact doomed to repeat the mistakes of the past. What the analogy to the McCarthy Era makes evident nonetheless is the fact that these are mistakes—mistakes that have allowed the Trump administration to engage in the kind of unconstrained targeting of non-citizen speech and political association that it has been unable to accomplish as easily with other groups because it knows that this is an area of state power in which the First Amendment has not properly penetrated, despite and perhaps because of the historical experience of the Second Red Scare. 

4. The Complicated Situation of the Unconstitutional Conditions Cases

In other areas of First Amendment law, meanwhile, the verdict is more mixed. Consider for example the doctrine of unconstitutional conditions which was crafted largely in response to the often successful efforts of state and federal governments during the McCarthy Era to use hiring and other conditions to expunge Communists from government employment, as well as from private institutions that depended heavily on government benefits, like unions.

Unlike the immigration law cases, here the courts did in fact turn away from the presupposition that underpinned the McCarthy Era cases—in this context, the assumption that the denial of a federal benefit for speech-related reasons did not implicate the First Amendment when the government had no obligation to provide that benefit in the first place. This was a view that the Court relied upon in cases such as Adler v. Board of Education and Barksy v. Board of Regents to uphold loyalty oath requirements and other anti-Communist laws during the McCarthy Era. But it was a view that in the 1960s the Warren Court squarely rejected because the Court had come to recognize by then that the governmental power to rescind benefits, even discretionary benefits, could be used to effectively suppress “dangerous ideas.”   

As a result, government workers, contractors and universities who find their access to government benefits conditioned on their willingness to speak or associate in particular ways have much more ability today to challenge those conditions than would have been true sixty years ago.  They have nonetheless less ability to challenge these restrictions than they would have possessed at the high point of free speech protections for government funding recipients.  This is due to the emergence of new doctrines that the Court developed in an effort to cabin the reach of the unconstitutional conditions doctrine to contexts in which the imposition of constraints on the government’s ability to condition funding would not interfere with its ability to carry out its own political projects or efficiently manage its workforce. The most important of these new doctrines is of course the government speech doctrine, which was first articulated in something like its modern form in Rust v. Sullivan—a case that involved the question of whether the government can require doctors who receive federal moneys to refrain from speaking in certain ways. And the answer that Rust provides is absolutely yes, if the doctors can be said to be speaking on behalf of the government.

How broadly the prohibition against unconstitutional conditions will limit the Trump administration’s efforts to use its power of the purse to control the speech of government workers, government contractors, and funding recipients thus will depend, in part, on how broadly courts define the category of government speech.  There is reason to worry.  As Helen Norton and others have noted, courts have tended to define the category quite broadly, to sweep in it a lot of speech that a reasonable observer might not necessarily view as emanating from the government. This reflects what we might call the pro-institutional character of much of recent First Amendment law—namely, the tendency of courts to grant significant deference to government regulators when they regulate speech that occurs in government institutions or on the government’s dime in an effort to ensure that the strong protections provided speech in the private sphere do not interfere too much with the operation of the regulatory state. What it has produced is a doctrine that in practice can be used  to take a “large and painful bite” out of the First Amendment (to use Justice Alito’s memorable language).

Whether courts will construe the government speech doctrine broadly in the face of often quite explicit efforts by the Trump administration to use funding restrictions and firings to engage in a project of ideological purification is an important question. As is true in the immigration cases, the aggressiveness of the Trump administration’s campaign of repression may prompt courts to interpret the law in a more speech protective manner than they have done in the past—or might even led to revisions to the existing rules. If so, that would be a welcome thing. Government officials must obviously be able to articulate their own viewpoint, and control to some degree the speech of those paid to speak in their name, if they are going to be able to do the job they were elected to do. But, as scholars have argued for decades, contemporary free speech law goes too far in protecting the government’s speech interests, at the expense of other important values. Whether courts will agree, or instead will grant the Trump administration the broad power to control the speech of its subordinates that prior administrations have enjoyed, remains to be seen.  What can be said for sure, though, is that the doctrinal terrain here is quite uncertain and that litigants who challenge speech-related funding restrictions or attempts by the administration to exclude them from access to government property face many doctrinal hurdles when they do so—to the great benefit of the government.

5. A Mixed Verdict When It Comes to Post-McCarthy Speech Law

As the example of the unconstitutional conditions cases suggests, while contemporary First Amendment law provides more protection against some of the Second Generation tactics of speech repression used today and during the 1950s than it once did, it does not provide robust protection against all of them, at least not so far. And even in areas where the doctrine is stronger than it was seventy years ago, significant questions remain about how effective that protection will turn out to be against the Trump administration’s aggressive and creative use of the levers of federal power, particularly when wielded against speakers who have traditionally only fit uneasily within the scope of constitutional concern: government workers, foreign speakers.  

The important doctrinal changes that have occurred in First Amendment law since the 1950s have not, in other words, fully succeeded in protecting the independent marketplace of ideas against what Vince Blasi famously described as the “pathologies” of government actors (what we might otherwise describe as their illiberal or totalitarian tendencies).  This is largely a consequence of the fact that when adjudicating First Amendment cases, the Court, as well as the lower courts, has not been guided solely by Blasi’s “anti-pathological perspective.” Among other things, the Court has attempted to ensure that strong First Amendment protections for private speech do not intrude too much on the operations of the regulatory state. 

This is a valiant goal, to be sure, but what the current moment of speech repression may be teaching is that courts may perhaps have struck the balance wrong: they may have granted government actors too much power to chill or incentivize speech, so long as they do not criminally or civilly sanction it, in the name of national security or regulatory efficiency or some other good. If so, this moment is a very good one for reform, so that we do not repeat the mistakes of the past … a third or fourth or fifth time. The current crisis of free speech therefore may provide an important opportunity to consider whether contemporary First Amendment doctrine must simply be enforced or instead must be reimagined to effectively defend against the profound pathologies of the contemporary moment and whatever future it helps to create. 

Genevieve Lakier is Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School. You can reach her by e-mail at glakier@uchicago.edu.