1. He seems to be winning.
Triumphalism is the very essence of the Trump brand. Often this is naught but hollow bragging: “my perfect administration,” wearing a red baseball cap in the presidential oval office emblazoned “Trump Was Right About Everything,” or most recently depicting himself as an officer in the First Cavalry Division. Unfortunately, this tends to obscure the very real and sweeping changes President Trump has wrought in his first year in office. If change is a mark of success, President Trump is the most successful president in history.
2. He ignores everything . . .
This is indubitably true. The Constitution, our civil laws, regulations, mores, customs, practices, courtesies -- all of it; the President simply ignores it all when he takes it into his head to act. A broad swath of our people find this refreshing in what they may feel is an over regulated society. After all, lawyers seem to have a penchant for telling you what you can’t do. President Trump simply ignores them.
This is not to suggest that he is entirely lawless. He is not. As an experienced litigator he has learned that –- at least on the civil side of our courts -– neither our Constitution nor laws enforce themselves, and he can do most anything until an aggrieved person or entity will stand up and say him “Nay,” i.e. take him to court. Now that he is our duly elected President after a full and fair election, he not only enjoys broad immunity from any personal liability, Trump v. United States, 144 S.Ct. 2312 (2024), he is prepared to deploy all the resources of the nation against obstruction. Daunting prospect, isn’t it?
Small wonder then that our bastions of independent unbiased free speech –- those entities we once thought unassailable –- have proven all too often to have only Quaker guns. Behold President Trump’s successes in limiting free speech -– law firms cower, institutional leaders in higher education meekly appease the President, media outlets from huge conglomerates to small niche magazines mind the bottom line rather than the ethics of
journalism.
3. . . . and he keeps bullying on.
Whether it’s social media, print, or television, President Trump is the master communicator of our time. His speech dominates today’s American idiom. Indeed, it may be said to define it. It is triumphal, transactional, imperative, bellicose, and coarse. It seeks to persuade –- not through marshaling data driven evidence, science, or moral suasion, but through power.
While the President naturally seeks warm cheering and gladsome, welcoming acceptance of his views, in the real world he’ll settle for sullen silence and obedience. What he will not countenance is dissent or disagreement. He recognizes, of course, that there are legislative and judicial branches to our
government, co-equal even to a unitary Presidency. He meets dissent from his orders in those other two branches by demonizing and disparaging the speakers, sometimes descending to personal vitriol.
Dissent elsewhere among our people is likewise disfavored, often in colorful scurrilous terms. All this the First Amendment capaciously and emphatically allows.
When he drifts off into calling people “traitors” and condemning them for “treason,” however, he reveals an ignorance of the crime and the special burden of proof it requires. More important, such speech is not protected by the First Amendment; it is defamatory. In his official capacity as President, however, President Trump enjoys broad immunity from any civil liability. Nixon v. Fitzgerald, 457 U.S. 731 (1982).
4. Retribution
Everything above in this section is necessary background to frame the problem this President has with the First Amendment. Where things run off the rails for him is his fixation with “retribution.” “I am your retribution,” he thundered famously while on the campaign trail. Yet government retribution for
speech (precisely what has happened here) is directly forbidden by the First Amendment. The President’s palpable misunderstanding that the government simply cannot seek retribution for speech he disdains poses a great threat to Americans’ freedom of speech. It is at this juncture that the
judiciary has robustly rebuffed the President and his administration.
It is these soundly reasoned decisions which today constitute the major bulwark of our right to free speech.
It is upon these decisions this Court relies in framing the remedy herein. For there must be a remedy (not a monetary remedy). In light of all the considerations just discussed, it will not do simply to order the Public Officials to cease and desist in the future. The harm here and the deprivation
suffered runs far deeper. The following constraints will, however, govern the Court’s remedy hearing.
To this delicate task the Court will turn in the remedy phase.
Freedom is a fragile thing and it’s never more than one generation away from extinction. It is not ours by way of inheritance; it must be fought for and defended constantly by each generation, for it comes only once to a people.
President Ronald Reagan, Inaugural Address as Governor of the State of California (January 5, 1967).
I first heard these words of President Reagan’s back in 2007 when my son quoted them in the Law Day celebration speech at the Norfolk Superior Court. I was deeply moved and hold these words before me as a I discharge judicial duties. As I’ve read and re-read the record in this case, listened widely, and reflected extensively, I’ve come to believe that President Trump truly understands and appreciates the full import of President Reagan’s inspiring message –- yet I fear he has drawn from it a darker, more cynical message. I fear President Trump believes the American people are so divided that today they will not stand up, fight for, and defend our most precious constitutional values so long as they are lulled into thinking their own
personal interests are not affected.
Is he correct?
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