When James Madison drafted the First Amendment -- “Congress shall make no law … abridging the freedom of speech” -- he made sure to use the article “the” in front of the word “freedom.” What seemed normal to him and superfluous to moderns was actually a profound signal that has resonated for 227 years. The signal was that because the freedom of speech existed before the government that was formed to protect it came into existence, it does not have its origins in government.
The freedom of speech has its origins in our humanity. It is a natural right. It exists in the absence of government. By the exercise of normal human reasoning, all rational people are drawn to exercise this freedom. Madison understood this. He could have written, “Congress shall grant freedom of speech.” He did not because that freedom is not Congress’ to grant or to abridge.
I am presenting this thumbnail sketch of the historical and philosophical underpinnings of the freedom of speech by way of background to a hot dispute now raging off the front pages. The dispute addresses whether the president of the United States can use federal courts to block the exercise of this right. CBS News wants to air an interview with an adult-film actress who alleges a sexual relationship with Donald Trump -- a relationship he denies -- and President Trump wants to prevent the airing.
The actress, whose stage name is Stormy Daniels, signed an agreement in October 2016 to accept $130,000 in return for remaining silent about her alleged sexual relationship with Trump, which she claims occurred shortly after the birth of his son Barron, who is now almost 12. The lawyer who negotiated the agreement with Daniels’ lawyer claimed that he was doing this on his own, that the hush money came from him and not Trump, and that Trump was not his client.
That claim raises profound campaign finance issues, but they are not the point of this piece. The point of this piece is about the freedom of speech.
Daniels, whose present lawyers have sued to invalidate the agreement, recently gave an interview about her relationship with Trump to the CBS News program "60 Minutes." CBS plans to air that interview in the coming weeks, and Trump wants to prevent that from happening. The stated legal basis for Trump’s lawyers asking a court to block the broadcast is the existence of the hush agreement, which, in plain words, bars Daniels from discussing anything about her alleged sexual relationship with Trump. Obviously, Trump does not want any allegations from Daniels -- true or false -- to become a topic of public conversation and a distraction to his presidency.
Can the president legally persuade a federal court to enjoin the airing of an interview? In a word: no. Here is the back story.
In 1931, in a famous case called Near v. Minnesota, the Supreme Court generally rejected the concept of “prior restraint.” Prior restraint is the use of the courts to prevent the media from disseminating materials they already have. The Near case dealt with an anti-Catholic, anti-Semitic, anti-African-American newspaper that Minnesota state courts had silenced. The Supreme Court overruled the state courts and held that the freedom of speech presumes that individuals will decide for themselves what to read and hear and the First Amendment keeps the government -- which here includes the courts -- from censoring the marketplace of ideas, even hateful ideas.
Forty years later, in the Pentagon Papers case, the Supreme Court made a similar ruling. There, Daniel Ellsberg, an employee of a contractor to the Department of Defense, stole highly classified documents that demonstrated that then-President Lyndon B. Johnson and his generals had knowingly deceived the American public about the war in Vietnam.
When Ellsberg gave the documents to The New York Times and The Washington Post, the Nixon administration hurriedly persuaded a federal judge in New York to enjoin the Times from publishing the documents. Before a federal judge in Washington could rule on a similar request -- and bypassing the intermediate appellate courts -- the Supreme Court took the case and ruled in favor of the freedom of speech and reinforced the judicial condemnation of prior restraint.
But the Pentagon Papers ruling went a step further than the Near opinion had. It ruled that no matter how a media outlet has acquired matters material to the public interest -- even by theft of top-secret documents -- the outlet is free to publish them. This, of course, does not absolve the thief (though the case against Ellsberg was dismissed because of FBI misconduct), but it makes clear that no court can block the media from revealing what they reasonably believe the public wants to hear.
Now back to the president and the adult-film star. Because whatever Daniels said to CBS arguably speaks to Trump’s fitness for office, individuals have the right to learn of it, to hear Trump’s denials and to form their own opinions. In Trump’s case, he has a bigger megaphone than CBS does -- via his adroit use of social media -- and the volume and ferocity of his denials might carry the day.
But the point here is that individuals can make up their own minds about the president’s character; they don't have to endure the prior restraint of a court's silencing a voice in the debate, even a tawdry voice.
What if the hush money agreement Daniels signed -- and the president did not -- is valid? Could that trigger prior restraint? In a word: no. The Madisonian values underpinning the freedom of speech, as articulated consistently by the Supreme Court, will prevail. Anything short of that would prefer government censorship over personal choices in matters of speech, a preference the First Amendment profoundly rejects.