By Edward Fitzpatrick
The First Amendment has become a political football.
Conservatives pile on when liberals try to shut down conservative speakers on campus, and liberals lash out when President Trump calls for sacking those who take a knee during NFL national anthems or dare to call him a bigot.
So will Little Rhody come into play during this big national clash? Absolutely. I mean, you don’t have to be Sean Spicer or Michael Flynn to know there’s always a Rhode Island connection.
Former Yale Law School Dean Robert Post cited a Rhode Island case in his Sept. 27 Politico essay titled: “Do Trump’s NFL Attacks Violate the First Amendment? Probably Not — But They Undermine Our Constitutional Values.”
During a campaign rally in Alabama, Trump blasted NFL players who refused to stand during the national anthem to protest police brutality and racial injustice. Trump said, “Wouldn’t you love to see one of these NFL owners, when someone disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out! He’s fired!’ ”
Post wrote: “If the president’s words are designed to trigger the legal suppression of citizen speech, he may likely be violating the First Amendment. The relevant case is the (U.S.) Supreme Court’s 1963 opinion in Bantam Books, Inc. v. Rhode Island. The decision concerned a Rhode Island commission charged with educating the public about obscene publications and recommending to the state attorney general the ‘prosecution of purveyors of obscenity,’ as the court’s decision put it.”
In 1956, the General Assembly created the Rhode Island Commission to Encourage Morality in Youth, and the commission promptly began declaring publications “objectionable” for sale to those younger than 18. By 1960, it had listed 106 publications, including magazines such as “Playboy,” “Rogue” and “Frolic,” plus some “horror” comics.
One commission member, identified in the Supreme Court ruling as Father Flannery, was asking why in heaven’s name some magazines were still on sale even though a list had been sent to distributors and the police. Another commission member, identified as Mr. Sullivan, was urging a call to the Cranston police chief to see just why the 1956 novel “Peyton Place” was still being sold in town.
Bantam Books and other publishers sued, claiming the law creating the commission violated the First and 14th Amendments. The case made its way to the U.S. Supreme Court, and in an 8-to-1 decision, the high court held that “the system of informal censorship” violated the 14thAmendment. While obscenity is not constitutionally protected speech, the 14th Amendment requires that state regulation of obscenity “ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity by only a dim and uncertain line,” the court said.
Some of the strongest words came from Justice William O. Douglas. “This is censorship in the raw; and, in my view, the censor and First Amendment rights are incompatible,” he wrote in concurrence.
So fast-forward to 2017. “Perhaps we might draw an analogous conclusion about Trump’s remarks,” Post wrote, referring to the NFL controversy. “The president has also engaged in a verbal campaign designed to suppress speech that offends him.”
And, Post said, “In some ways, Trump’s behavior is even worse than the Rhode Island commission’s. Whereas the commission aimed to suppress obscenity, a category of expression without legal protection, Trump’s ire is directed at core political speech protesting law enforcement’s unfair treatment of minorities.”
But then Post reverses field, saying, “The analogy to the Rhode Island commission is perhaps too quick.” For all his bluster, Trump was not invoking federal law enforcement powers to harass or punish NFL players for taking a knee, he said.
But if he had, “Bantam Books tells us that Trump’s threats would violate the First Amendment,” Post wrote. “In fact, this conclusion would follow if Trump intended to activate any part of the vast civil and regulatory infrastructure of the federal government to retaliate against NFL players (or their employers) for the protests.”
That last statement is interesting in light of Trump’s subsequent tweet on Oct. 10: “Why is the NFL getting massive tax breaks while at the same time disrespecting our Anthem, Flag and Country? Change tax law!”
But while that might move Trump closer to the line of scrimmage (so to speak), it’s not enough to represent a First Amendment violation, said Michael J. Yelnosky, dean of the Roger Williams University School of Law. For one thing, he noted, the president might oversee the Internal Revenue Service, but he doesn’t have the power to change tax law.
The White House has said Trump’s tweet about “massive tax breaks” referred to public subsidies for sports stadiums. And, as The Washington Post noted, it’s unclear how Trump could influence the tax-exempt bonds used to build stadiums.
In any case, Yelnosky said that while the Supreme Court ruled on the Rhode Island case 54 years ago, its lessons remain relevant today. “Bantam Books reminds us that the government has to tread very lightly when it identifies speech that is worthy of punishment,” he said. “Trump can say something offends him, but he can’t then bring the power of the government to bear to sanction that speaker.”
The wide latitude afforded by the First Amendment would have allowed the president to level harsh, unequivocal criticism against the neo-Nazis and Klansmen who marched in Charlottesville, Va. Instead, Trump chooses to use his bully pulpit to bully protesting pro athletes and members of a free press. If he backs such misguided bluster with federal action, he can expect to lose a First Amendment legal battle.
Yelnosky noted Rhode Island has been at the epicenter of other big First Amendment battles. In the 1992 case of Lee v. Weisman, the U.S. Supreme Court ruled 5-4 that having clergy offer prayers at Providence’s Nathan Bishop Middle School graduation ceremony violated the First Amendment’s Establishment Clause by creating “a state-sponsored and state-directed religious exercise in a public school.” And in the 1984 case of Lynch v. Donnelly, the high court ruled 5-4 that including a nativity scene in Pawtucket’s Christmas display did not violate the First Amendment’s Establishment Clause because it had “legitimate secular purposes.”
“Bantam Books is just one instance in which Rhode Island has been a First Amendment flash point,” Yelnosky said.
As always, all roads lead to Little Rhody.
Edward Fitzpatrick is director of media and public relations at Roger Williams University and a member of NEFAC’s Board of Directors. This post originally appeared on the university’s First Amendment blog.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
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