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Police in Uttar Pradesh, India, have charged four people, including a Korean Christian and three Indian citizens, with blasphemy and violating a law banning people from attempting to convert others. The four say they were merely delivering food aid to the poor. But police say a woman told them they told her she could get free food by coming to church and was offered money to convert to Christianity. The man organizing the food effort says the charges are trumped up and that two of the Indians who were arrested aren’t even Christian but just helping to deliver the aid.

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American Thinker has unreservedly apologized to Dominion Voting Systems for publishing “completely false” statements about the company’s involvement in an imaginary anti-Trump plot that supposedly delivered a phony victory to President-elect Joe Biden. The conservative website, one of several right-wing outlets that promoted the wacky conspiracy theory, was responding to a letter in which Dominion demanded a retraction and threatened to sue for defamation if one was not forthcoming.

“American Thinker and contributors Andrea Widburg, R.D. Wedge, Brian Tomlinson, and Peggy Ryan have published pieces…that falsely accuse [Dominion] of conspiring to steal the November 2020 election from Donald Trump,” says a statement that Thomas Lifson, the website’s editor and publisher, posted on Friday. It continues:

These pieces rely on discredited sources who have peddled debunked theories about Dominion’s supposed ties to Venezuela, fraud on Dominion’s machines that resulted in massive vote switching or weighted votes, and other claims falsely stating that there is credible evidence that Dominion acted fraudulently.

These statements are completely false and have no basis in fact. Industry experts and public officials alike have confirmed that Dominion conducted itself appropriately and that there is simply no evidence to support these claims.

It was wrong for us to publish these false statements. We apologize to Dominion for all of the harm this caused them and their employees. We also apologize to our readers for abandoning 9 journalistic principles and misrepresenting Dominion’s track record and its limited role in tabulating votes for the November 2020 election. We regret this grave error.

Lifson notes that “we received a lengthy letter from Dominion’s defamation lawyers explaining why they believe that their client has been the victim of defamatory statements.” Former Trump campaign lawyer Sidney Powell, a conspicuous promoter of the “completely false” story about fraud-facilitating software that supposedly changed Trump votes to Biden votes, received a similar letter from Dominion on December 16. Four days later, Powell tweeted that she was “retracting nothing,” because “we have #evidence” that the people running the company are “#fraud masters.” On January 8, Dominion sued Powell for defamation in the U.S. District Court for the District of Columbia, seeking $1.3 billion in compensatory and punitive damages.

Powell also has been sued by Dominion executive Eric Coomer, who figures prominently in her conspiracy theory, which alleges that he participated in “an antifa conference call” in late September or early October, during which he supposedly bragged that “Trump is not gonna win” because “I made fucking sure of that.” The defendants in Coomer’s lawsuit, which he filed in Denver County District Court on December 22, also include conservative activist Joseph Oltmann (who claimed to have “infiltrated” that alleged conference call), Trump attorney Rudy Giuliani, Conservative Daily, The Gateway Pundit, Newsmax, One America News Network, OANN White House correspondent Chanel Rion, Gateway Pundit owner Jim Hoft, blogger Michelle Malkin, and radio host Eric Metaxas.

The most prominent promoter of conspiracy theories involving Dominion, of course, is President Donald Trump, whom the company has not yet sued for defamation. In the 1982 case Nixon v. Fitzgerald, the Supreme Court ruled that presidents have “absolute immunity” from civil (but not criminal) liability based on their “official acts.” Trump’s liability for damage to Dominion’s reputation therefore would seem to hinge on whether his wild claims about Dominion count as “official acts.”

In 2019, Elle magazine columnist E. Jean Carroll, who has publicly accused Trump of raping her in the mid-1990s, sued him for defamation because he falsely denied knowing her and implied that she had invented the incident. A federal judge in Manhattan last year ruled that Trump’s statements about Carroll, which he made while he was president, “were not within the scope of his employment,” which implies that he is not entitled to immunity from her lawsuit under Nixon or the Federal Tort Claims Act. The Justice Department recently asked the U.S. Court of Appeals for the 2nd Circuit to reverse that decision.

Pro-Trump attorneys like Powell, Giuliani, and Lin Wood are shielded from liability for defamation based on statements they have made in court on behalf of their clients. But “the litigation privilege doesn’t cover all out-of-court statements,” says UCLA law professor Eugene Volokh, a First Amendment specialist, although “in many states the fair report privilege does cover lawyers’ public discussion of claims made in their lawsuits.” The extent of that privilege varies from state to state, Volokh says, and it is not yet clear which state’s standard would apply to the lawsuits filed by Dominion and Coomer, since “this whole ‘choice of law’ question is itself quite complicated.”

The legal exposure for media outlets and journalists is not complicated by the litigation privilege. Assuming that Dominion and its executives qualify as “public figures,” the plaintiffs would have to show that the non-lawyer defendants acted with “actual malice,” meaning they knew their defamatory statements were false or published them with “reckless disregard” for their accuracy. That standard, Dominion and Coomer argue, is easily met in this case, since the defendants made highly implausible claims that were not supported by credible evidence and were contradicted by multiple authoritative sources, such as the “industry experts and public officials” cited in American Thinker‘s retraction.

Newsmax and Fox News have aired corrective reports debunking election conspiracy theories amplified by some of their employees. Both outlets have received demand letters from Dominion and Smartmatic, another company that figures in the fantasy peddled by Trump, Powell, Giuliani, and Wood.

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In their latest post on the subject of impeachment and the First Amendment, Josh Blackman and Seth Tillman somewhat belatedly acknowledge the Supreme Court’s longstanding jurisprudence on the free speech rights of government employees. As numerous critics of their earlier posts have pointed out (e.g.—Jonathan Adler, Andrew Koppelman, and myself), the First Amendment  does not protect senior government employees in policy-making positions from being removed from their positions. Indeed, such officials get fired because of their speech on a regular basis—including by Donald Trump himself!

To their credit, Blackman and Tillman acknowledge this, and do not claim that high-level government officials have any general constitutional right against being removed for their speech. But they claim that presidents are different from appointed officials because the latter are subordinates of the president, while the president himself has no superiors, except for the voters during an election year:

Senior appointed policy-making executive branch officers are removable by the President. If they lose the confidence of the President, for whatever reason, even for otherwise lawful speech, he can remove them. Absent constitutionally valid congressional tenure protections, these positions are at will….

The President’s relationship to his subordinate executive branch officers is one of a superior to inferiors. The President is elected; the senior officers are appointed. The President can nominate his senior officers. He can direct them. Generally, he can remove them at will….

By contrast, the President is not a cabinet member, who works for a superior—other than the People who act through elections. Nor is the President a GS-15 who can be disciplined for speaking at a political rally. Treating the President as an appointed officer or a civil servant would eliminate the President’s ability to act like a politician and party leader.

Blackmand Tillman go on to argue that Congress is not the president’s “superior” and therefore doesn’t have the power to remove presidents for their speech, in the way that the president himself can remove his own high-ranking executive branch subordinates.

The problem with the Blackman-Tillman theory is that they overlook the reality that one branch of government can remove members of another even if they are not otherwise the superiors of the latter. The whole point of impeachment is to give Congress the power to remove legislative and judicial officials who abuse their power, commit crimes, or otherwise create a menace to the political system. Congress can also, if it wishes, bar such officials from holding office in the future.

While, as Blackman and Tillman note, “the people” are the ultimate superiors of the president, they also cannot remove the president between elections, even if he severely abuses his power, and they also cannot sanction him for crimes and abuses perpetrated during the “lame duck” period after an election (as in the case of Trump). Impeachment is intended to fill this gap in the constitutional structure. To put it in Blackman and Tillman’s terms, Congress is indeed the president’s superior for the limited purpose of removing him and barring him from future office-holding in response to certain types of illegal or abusive activity on his part. That is perfectly consistent with their not being his superior in various other ways.

As I pointed out in my first post in this exchange, exempting the president from impeachment for speech acts that are protected from criminal and civil sanctions under the First Amendment would have absurd and dangerous consequences. Nothing in the text, original meaning, and history of the clauses of the Constitution governing impeachment creates such an exception to the impeachment power.

The Blackman-Tillman approach would also have the dubious consequence of enabling Congress to impeach lower-level officials for various kinds of speech, but barring them from impeaching the president when he engages in the exact same conduct; this, despite the fact that the impeachment standard for both is actually the same: they can all be impeached, removed, and barred from office-holding in the future if they commit “high crimes and misdemeanors.”

As for the argument that impeachment for speech acts would create a dangerous slippery slope preventing the president from functioning as a politician and party leader, I preemptively addressed it here:

[S]lippery slope fears about impeachment are misplaced. If anything, there is much more reason to fear that presidents who richly deserve to be removed will get away with serious abuses of power.

The biggest reason why we need not worry much about frivolous impeachment and removal is that removal requires a two-thirds supermajority in the Senate, as well as a majority in the House of Representatives to impeach. The former is almost always impossible to achieve unless many senators from the president’s own party vote to convict him….

Ultimately, the real danger we face is not that too many good presidents will be removed from power unfairly, but that too many grave abuses of power will go unpunished and undeterred. I am not optimistic that impeachment alone can solve this problem. The supermajority requirement that prevents frivolous impeachment also prevents it in all too many cases where it is amply justified.  But the threat of impeachment for abuse of power can at least help at the margin.

 

Finally, Blackman and Tillman again cite the president of some senators raising the First Amendment as a defense for President Andrew Johnson during his impeachment trial in 1868. I am happy to rest on the points I made against that argument in my previous post in this exchange. For those interested, that post also contains links to the earlier posts in our debate, as well as commentary by others.

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I was standing outside the state capitol in Harrisburg, Pennsylvania, where gun-toting defenders of President Donald Trump were supposedly going to start marching at noon. I could see cops, I could see National Guardsmen, and I could see dozens and dozens of reporters, but actual protesters were scarce. I did spot a fellow in a Gadsden Flag facemask and a woman whose shirt displayed a slogan about rebellion against tyranny, and as they passed behind me I heard him crack a joke: “I should walk up to the photographers here and say, ‘Excuse me, can you direct me to the armed insurrection?'”

In the wake of the recent riot at the U.S. Capitol, a widely circulated flier had called for armed marches at every state capitol on January 17. That sounded pretty dubious—all 50 states? even the most solidly blue ones?—but it seemed plausible that someone would show up somewhere, and of the capitol cities that I can reach within 90 minutes I figured Harrisburg was the most likely to attract a crowd. The day before, working from a list of upcoming protests that a security firm had been circulating, I had gone to a demo in Westminster, Maryland; it had turned out to be a liberal protest, and not a particularly big or rowdy one. Now I was in Harrisburg, and the first actual protesters to show up were, again, some liberals: A local activist named Gene Stilp and one or two assistants had shown up with a cardboard statue of Donald Trump, which they make a show of toppling for a crowd of photographers.

I did, before that, run into a guy named Eddie with a bunch of “Biden Is Not My President” t-shirts that he’d been hoping to hawk to the marchers. Another t-shirt salesman, who had driven down from Pittsburgh, said he’d been under the impression that this was going to be a Second Amendment march, not a stop-the-steal march. (He might do better tomorrow in Richmond, Virginia, where he plans to set up shop among the gun-rights activists in town for Lobby Day.) A bona fide pro-Trump protester did eventually show up, with a “Fraud 2020” sweatshirt and a megaphone. The general sentiment in his circles, he said, was that the military was going to be out on the street today and that the area was therefore best avoided. But he had decided to head over anyway and represent the That-election-was-probably-stolen-and-did-you-know-that-antifa-infiltrated-the-crowd-at-the-U.S.-Capitol? perspective.

This sparseness did not seem to be unusual: From Salem, Oregon, to Nashville, Tennessee, reports were rolling in of not-quite-demonstrations where the journalists outnumbered the demonstrators. Even the larger protests—like the one in Columbus, Ohio, which the Statehouse News Bureau described as “odd but peaceful”—didn’t see to have drawn more than a few dozen marchers. And the protesters weren’t all playing to type either: In Salem, where a handful of folks from the anti-government boogaloo movement had showed up, one brought a sign that said “Fuck Trump” as well as “Fuck Biden.”

In Harrisburg, the biggest story was all the reporters looking for a story. If you had opinions you wanted to get into the news, this was your golden opportunity. The man in the Fraud 2020 sweatshirt held court for a while, answering reporters’ questions through his megaphone. A black guy berated the cops guarding the capitol building, then announced to everyone present that the real white supremacists were those officers on the other side of the barricade. And the dude in the Gadsden Flag mask wound up holding a little press conference on the Capitol steps. This gradually revealed that—as is often the case at protests, left or right—his politics weren’t as predictable as you might have guessed: He thought Trump on balance had been a good president, but he had also supported impreachment over the Ukraine scandal.

While he was talking, the wind nearly blew the barricade over, to the crowd’s amusement. “Can you arrest God?” someone asked. I’m not completely sure, but I think even one of the cops might have laughed.

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[This post is co-authored with Seth Barrett Tillman.]

Let’s take a step back from the specific context of impeachment. In this post, we’d like to discuss a more foundational question: as a general matter, why do, or why should, different positions in the government receive different levels of free speech rights? 

The House Judiciary Committee report took the position that the President’s free speech rights are more limited than the rights of a private citizen. The report favorably cited posts by co-bloggers Professors Jonathan Adler and Ilya Somin, as well as other academics who reached similar conclusions. The Committee apparently assumed that the President’s free speech rights could be analogized to those of civil servants. The committee staff reported that the First Amendment “applies very differently to speech by government officials and public employees,” and the President “is no ordinary citizen.” The report continued, “the President is subject to different rules than private citizens and can be held accountable for his expression (including all expression relating to his office) in ways that [private citizens] cannot be.” In our view, there are problems with analogizing the President to civil servants. In this post, we will explain our thinking. Our views concern First Amendment rights in general, and not the circumstances of the impeachment process in particular. But our general position would also apply in the specific impeachment context.

In cases like Pickering v. Board of Education (1968) and Garcetti v. Ceballos (2006), the Supreme Court explained that certain governmental employees have reduced free speech rights in certain contexts. This doctrine is a branch or application of the First Amendment. In Garcetti, Justice Kennedy summarized the doctrine: 

Pickering provides a useful starting point in explaining the Court’s doctrine. There the relevant speech was a teacher’s letter to a local newspaper addressing issues including the funding policies of his school board. “The problem in any case,” the Court stated, “is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” The Court found the teacher’s speech “neither [was] shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.” Thus, the Court concluded that “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.”

Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. This consideration reflects the importance of the relationship between the speaker’s expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.

For decades, the Pickering test has been subject to widespread criticism. This balancing test is difficult to apply in many different contexts. Justice Kennedy recognized this difficulty in his opinion: 

To be sure, conducting these inquiries sometimes has proved difficult. This is the necessary product of “the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors … to furnish grounds for dismissal.” The Court’s overarching objectives, though, are evident.

What would it mean to apply Pickering to the presidential impeachment process? Is the presidency analogous to the status of a civil servant? Our view is that the reduced free speech rights standards announced in Pickering should not apply to elected officials. Indeed, Pickering did not involve a constitutional claim brought by an elected official. Rather, this case involved free speech claims brought by a government employee–a public school teacher. This position was not subject to election.

As a general matter, we think it is a mistake to analogize the President, an elected official, to a full-time, permanent employee or civil servant. Elected public officials make policy; civil servants and other public employees carry out those policies. The case law permits the civil servants’ speech to be muted so that the government-as-employer can carry out its policy goals. The goal is to ensure that elections remain meaningful, and that the government-as-employer can put forward its message, notwithstanding its employees who may take a different view. We do not suggest that the Pickering line of cases was correctly or incorrectly decided. Our point is more limited: Pickering offers civil servants some free speech protections, but it also allows the government-as-employer to impose some free speech limitations on its civil servants. Those free speech limitations make little or no sense when applied to elected officials.

The Judiciary Committee also analogized the President to senior executive branch officers. The report cited Professor Ilya Somin, who wrote “Donald Trump himself has fired numerous cabinet officials and other subordinates because they expressed views he didn’t like.” On its face, Pickering does not extend to the senior executive branch officers appointed by the President. Nor do we think that Pickering‘s policy rationales should extend to such positions, albeit for different reasons. 

Senior appointed policy-making executive branch officers are removable by the President. If they lose the confidence of the President, for whatever reason, even for otherwise lawful speech, he can remove them. Absent constitutionally valid congressional tenure protections, these positions are at will. They are charged with carrying into execution the elected President’s policy goals within the context of the legal system. We do not think that Pickering protects or should protect these at-will positions who serve at the pleasure of the appointing official. It would be a wholly new and novel claim to say that the President could not fire a cabinet secretary because of a speech the secretary gave. The First Amendment cannot provide a cause of action against such a “wrongful” termination on free speech grounds. (Here, we do not address here congressional protections of tenure.) 

Pickering serves an arguably important role: it ensures that millions of civil servants nationwide enjoy a large share of free speech rights that private citizens enjoy. It would be a tragic loss to democracy if these citizens surrendered all their free speech rights during their entire professional service that could last decades. We think these civil servants stand in a different position than at-will executive branch officers who may serve a four- or eight-year tenure, and will then return to the private sector. There are other reasons to reject the notion that Pickering‘s protections for civil servants’ speech might apply or should apply to appointed senior executive branch officers. The President chooses his officers, but does not, as a general matter, staff or fill civil service positions. The President can remove his officers (in most circumstances), but he does not, as a general matter, have the power to remove civil servants from government employment. Executive branch officers are policy-makers; generally, most civil servants are not. For all these reasons, civil servants stand in a different position from executive branch officers. The President’s relationship to his subordinate executive branch officers is one of a superior to inferiors. The President is elected; the senior officers are appointed. The President can nominate his senior officers. He can direct them. Generally, he can remove them at will. In other words, the free speech concerns that animate Pickering do not apply to senior executive branch officers. We do not suggest that appointed senior executive branch officers are more “important” than civil servants. Rather, these positions tend to exercise more policy-making powers. As a result, when they speak, their message is more readily mis-identified as that of the President they serve. Arguably, the President needs more control over them.

By contrast, the President is not a cabinet member, who works for a superior—other than the People who act through elections. Nor is the President a GS-15 who can be disciplined for speaking at a political rally. Treating the President as an appointed officer or a civil servant would eliminate the President’s ability to act like a politician and party leader. With good reason, the elected President is not subject to the Hatch Act. He is expected to engage in overtly partisan speech. In our view, the President has more expansive free speech rights than civil servants, who have broader free speech rights than at-will executive-branch officers. There is a hierarchy for speech rights for these different positions. It is not the case that principal officers have more rights than inferior officers who have more rights than civil servants. Government officials and officers are not an undifferentiated mass, with identical First Amendment rights. Nor do these rights track the traditional status of positions in the government. Instead, we suggest that elected officials have the widest scope of free speech rights, civil servants enjoy some free speech rights which are subject to certain limitations, and that at-will presidential appointees enjoy the least. This result should not be surprising. Indeed, the whole point of nineteenth century civil service reforms was to insulate civil service positions from party politics, as opposed to transferring policy-making out of the hands of the elected government. 

Finally, we do not hold a novel position about the President’s free speech rights. During the Johnson impeachment trial, several senators articulated our view that the President ought to have free speech rights that are as expansive as those of private citizens. 

Senator John Henderson of Missouri stated plainly that “the President, like other persons, is protected under” the First Amendment. “He too,” Henderson continued, “has the right to make foolish speeches.” Senator James Grimes of Iowa admitted that Johnson’s speeches were “indiscreet, indecorous, improper, [and] vulgar.” But he could not “attempt[] to repress the freedom of speech.” Senator Peter Van Winkle of West Virginia said the First Amendment was “unquestionably of universal application,” even to the President. Senator Joseph Fowler of Tennessee boasted that Johnson did no “more than exercise that liberty of speech guaranteed to him by the Constitution.” Senator William Pitt Fessenden of Maine warned that removing the President for his speech would not only “den[y] him a right secured to every other citizen of the republic . . . but might deprive the people of the benefit of his opinion of public affairs.” The President, Fessenden contended, has the right to communicate with the people. And the people have a right to hear those communications.

We do not here, nor did we in our prior post, cite these senators as holding the only view about the scope of the President’s free speech rights in the impeachment context. We acknowledged that some senators who voted to convict, as well as the prosecuting House managers, rejected this free speech argument. Our goal was not to say, and we did not say, that the Johnson trial established the correct position. Rather, we raised this history to show that the issue was, and remains, fairly contestable. In 1868, there was a difference of opinion about what speech rights the President has. That same debate exists today. This issue is not clear. It is not settled. There is no controlling on-point judicial precedent. There is some on-point discussion from a prior presidential impeachment. And those debates from the Johnson Senate trial provide some support for our position. But we do not think this issue has been resolved or liquidated. 

The Judiciary Committee report concluded that freedom of speech “applies very differently” to the President “by virtue of his office” than it does to “private citizens.” Moreover, the Committee endorsed the views of constitutional scholars who relied on cases analogizing the President’s free speech rights to the free speech rights of civil servants. Going forward, the House managers, acting as prosecutors, will have to explain how those cases are analogous to elected officials, including the President. The managers may contend that the President is only accountable to the People every four years during the election season. But during the gaps between elections, the People cannot act. So, during that interregnum, Congress acts as the President’s superior—apparently in much the same way that the Board of Education acts as a teacher’s superior. We reject this analogy between the President and civil servants. Congress is not the superior to the inferior President. They are both elected. They both make policy, within the confines of complying with the legal system. They are both authorized in different ways to control the government-as-employer. As a general matter, Congress does not stand in the role of the employer vis-a-vis the President. If the President has an employer, it is the People, not Congress through impeachment. And that role exists throughout the entirety of a President’s four-year term, and not only during the short election season.

Pickering and Garcetti were cases about civil servants. These precedents do not furnish good analogies to justify removing elected officials for purported speech-related wrongs.

We close with another note of caution. Since January 6, many professors have formed firm conclusions on difficult and novel constitutional questions that have not been judicially resolved or otherwise clearly established in prior House and Senate impeachment proceedings. Some of these issues have never been adjudicated in any forum. Some academics strongly objected to our position that the President should have the full scope of traditional free speech rights in general, and in the impeachment process, in particular. But it is evident that this view was articulated during President Johnson’s senate trial. Right or wrong, that view cannot be dismissed out of hand. 

[Seth Barrett Tillman is a Lecturer at Maynooth University Department of Law, Ireland (Roinn Dlí Ollscoil Mhá Nuad).]

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