A common refrain is that the First Amendment doesn’t mean you can falsely shout “fire” in a crowded theater. A recent amicus brief filed by the Center for Competitive Politics (CCP), however, argues that if you’re a federal candidate, shout away.
The brief, filed in support of the president’s “travel ban” (aka “Muslim ban”) that may shortly be considered by the Supreme Court, argues that the lower courts have violated the president’s First Amendment rights by acknowledging statements he made on the campaign trail. As background, the Fourth Circuit struck down the ban because, in part, statements made by the president on Twitter while he was campaigning indicated that the travel ban had an “improper” and unconstitutional motive. (The Ninth Circuit also considered the president’s tweets in relation to the travel ban, but looked only at a tweet issued after he took office). Yet, while the Fourth Circuit concluded the ban violated the plaintiffs’ First Amendment rights, CCP argues that it is rather the president’s First Amendment rights that were violated by the court.
CCP argues that the Fourth Circuit’s consideration of the statements unconstitutionally “chills expression and conflicts with numerous long-standing protections for campaign speech.” CCP notes that “the First Amendment ‘has its fullest and most urgent application precisely to the conduct of campaigns for political office,’” quoting a recent campaign finance case from the Supreme Court, but, it says, the Supreme Court “has never confronted” the question of the evidentiary value of campaign speech. Nonetheless, it argues that the Fourth Circuit’s consideration of campaign speech will prevent “’the electorate [from] intelligently evaluat[ing] [candidates’] personal qualities and their positions on vital public issues’ before voting.”
But the claimed lack of precedence is imaginary. It is well settled that speech, even speech at the core of the First Amendment, may be used as evidence; the Court has held that the First Amendment “does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.”
That, of course, is obvious. If you go around talking about how you plan to murder Bob, and then Bob goes missing, you can readily expect your statements will come back to bite you, regardless of whether you happen to have declared your candidacy.
CCP’s argument leads to absurd conclusions. Not only could a candidate Trump tweet about his intent to violate the Constitution, secure in the knowledge it could never be used against him, but a candidate Trump could engage in any type of speech that would lack First Amendment protection in other fields. Candidate Trump could happily slander private citizens in his campaign ads, knowing his statements could never be introduced into evidence at trial. He could threaten to kill his political opponents with impunity, enjoying the immunity his “true threats” would have from prosecution (and if those opponents just so happened to go missing, enjoying the fact his statements could not be considered by a court). He could even openly conspire to break the law from the podium, knowing his statements could never be used against him. These statements would surely provide voters with additional information as to his “personal qualities and [ ] positions,” so CCP would apparently grant them constitutional protection from any and all consequences.
So why would CCP make such a nonsensical argument? Well, CCP’s focus on campaign finance law provides a useful clue. If all statements made in the course of a campaign for political office are immune from consideration in a court of law, then those statements could never been introduced as evidence in litigation over a campaign finance violation or even in a trial for bribery. That would mean that an officeholder could openly accept a quid pro quo bribe so long as the quo is in the form of a campaign commercial (even millions of dollars worth of campaign commercials). If the First Amendment would bar the Fourth Circuit from considering the president’s tweet because it was made in the context of a campaign, so too would it bar a court from considering a campaign ad as evidence of a quid pro quo bribery scheme. And once a campaign ad could not constitute a bribe, then a major justification from campaign finance regulation would be undermined: after all, we require disclosure of campaign ad spending, in part, to help guard against quid pro quo bribery or its appearance.
Yet the Court has sensibly found that campaign funds, just like anything of value, can be a bribe or the rewards of extortion, and it has clearly rejected the argument that First Amendment immunizes consequences—even criminal consequences—just because the crime involves campaign activity at the core of the First Amendment.
The First Amendment protects our right to speak, free from government restraint. It does not, however, immunize us from all consequences of that speech. If a candidate’s stump speech confesses his intent to violate the Constitution, he should not be surprised if that speech is quoted in litigation challenging that violation. Candidates should remember, anything you say may be used against you in a court of law.