This week, President Trump threatened both the NFL and NBC with penalties because he dislikes the ideas their reporters and players have communicated.
In both cases, the pattern is the same — government retaliation that would violate the First Amendment if carried out.
On Wednesday, the president lit into NBC over a story that alleged Trump had demanded a ten-fold increase in the American nuclear arsenal, shocking top military advisers and prompting the secretary of State to call the president a "moron.”
Trump called the NBC report "pure fiction," and followed up 10 minutes later with a second tweet. "With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!"
With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!— Donald J. Trump (@realDonaldTrump) October 11, 2017
As a law professor and First Amendment lawyer, I can assure you that most first-year law students don’t make mistakes like this. Punishing networks for disagreement with their criticism of the president is an obvious violation of the First Amendment.
If that weren’t enough for one week, Trump also menaced the NFL with unconstitutional threats. The league has rankled Trump by refusing, at least so far, to penalize players who kneel or lock arms during the national anthem.
On Tuesday, Trump tweeted, "Why is the NFL getting massive tax breaks while at the same time disrespecting our Anthem, Flag and Country? Change tax law!"
Why is the NFL getting massive tax breaks while at the same time disrespecting our Anthem, Flag and Country? Change tax law!— Donald J. Trump (@realDonaldTrump) October 10, 2017
It is not clear what "tax breaks" the president had in mind. The NFL's League Office relinquished its tax-exempt status in 2015, and the individual teams had never been tax-exempt.
In any case, government officials who dislike the speech rules established by a private organization cannot punish the organization, whether through taxes or other penalties.
A private group that puts on an activity has a right under the First Amendment to decide what speech is permissible and impermissible at the activity.
Thus, the Supreme Court held in a 1995 decision that a private group that organized a Boston parade had a First Amendment right to exclude members of a gay pride organization from marching. That is because a private organization expresses itself through the rules it sets for the speech of its members and participants.
Their parade, their speech rules.
By the same token, the NFL has a First Amendment right to set the expressive rules for football games. It can insist that all players stand, kneel, or balance on one leg, or it can allow each player to express himself during the anthem as he sees fit.
To be sure, the First Amendment allows the president to lambast television networks and sports leagues as much as he wants. What he cannot legally do, however, is revoke benefits or inflict penalties for speech he disagrees with.
The president’s threats against network television and the NFL are more than a violation of constitutional principle. They are a threat to democracy itself. If the government controls public discourse, it controls public opinion.
Take Russia, an undemocratic country that goes through the motions of holding elections as an example. President Vladimir Putin consolidated power in large part enserfing broadcast media under the will of the government. Voting becomes an empty exercise when government censorship dominates public discussion. When I lived in Moscow in the early 2000s, I saw this process happening in real time.
A republic in which the government allows only favorable images and reports on the airwaves becomes a democracy in name only. Trump, of course, could care less, so the only hope lies in the fortitude of NBC and the NFL.
This is the hour for TV and football to stand up for themselves, and the republic too.
David M. Shapiro is the director of appellate litigation for the Roderick and Solange MacArthur Justice Center, and a clinical assistant professor of law at Northwestern Pritzker School of Law. Previously he worked as a media and First Amendment lawyer in private practice.