How the First Amendment could save Don Jr. – The Hill (blog)
Certainly subsequent White House news has pushed Donald TrumpDonald TrumpBorder patrol was ordered not to engage with congressmen, lawyers during travel ban Trump says he never called White House 'a dump' Trump to sign memo on Chinese intel property trade practices Friday: report MORE Jr.s June 2016 meeting with a Russian lawyer allegedly pedaling Hillary ClintonHillary Rodham ClintonCongress wants Trump Jr. phone records related to Russia meeting Zuckerberg hires top Clinton pollster amid rumors of presidential run: report Democrats new 'Better Deal' comes up short for people of color MORE dirt to the sidelines. But as more details emerge, even Trump Jr.s brother-in-law, Jared Kushner, has tried to distance himself from the meeting in a statement before his recent closed-door testimony to the Senate intelligence committee.
Some have dubbed the Russia meeting a category 5 hurricaneand many have called for a federal prosecution of the Presidents son. Still, the debate has ignored the First Amendment, a constitutional bulwark that may save the younger Trump.
The right to free speech shields the receipt and dissemination of information. Indeed, truthful information about candidates for high office lies at the heart of constitutional protection. In this case, there is no suggestion that Trump Jr. thought the Russians would feed him falsehoods about Democratic presidential hopeful Clinton. He wanted to learn and perhaps disseminate facts damaging to his fathers opponent.
The First Amendment exists in part to serve this very function the disclosure of truthful information about the people seeking to govern us. As James Madison put it, a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both.
What makes this situation complicated is that the Russian government might have obtained the information by breaking hacking or espionage laws in the first place.
Trump Jr. says Russian attorney Natalia Veselnitskaya did not actually have any meaningful information in the June 9, 2016 meeting. But for the sake of argument, lets assume the worst about Trump Jr.s state of mind going into the meeting.
Lets assume he thought he was going to receive information that he knew the Russians obtained through criminal activity.
As long as Trump Jr. did not participate in or encourage the Russian governments illegal activity and there is no evidence in the public domain that he did he has a strong argument that the First Amendment immunizes his conduct. He was just agreeing to receive truthful information.
The Supreme Court considered a similar situation in Bartnicki v. Vopper, a 2001 case in which a journalist received a tape of a conversation among union leaders that someone had recorded in secret, in violation of federal wiretap laws. The journalist did not put anyone up to the illegal recording. The journalist did, however, publicize the recording, and the Court assumed that the journalist knew that the person who made the recording broke the law.
Drawing on the famous Pentagon Papers Case, the 1971 decision that allowed the media to publish classified documents about the Vietnam War, the Bartnicki Court held that the First Amendment protected the journalists right to publicize the recording.
In the current situation, Trump Jr. stands in the shoes of the journalist in Bartnicki, and the Russian government stands in the shoes of the illegal recorder. Like the recorder, the Russian government may have obtained the information illegally.
Like the journalist, Trump Jr. may have known or strongly suspected that the information was obtained illegally, but there is no evidence at present that he participated in or encouraged any illegality.
If special counsel Robert Mueller in his investigation of Russian interference in the 2016 election sought to prosecute Trump Jr. for the meeting, he would likely rely on a campaign finance law that criminalizes accepting money or other thing of value from foreign nationals.
Surely a thing of value means that a campaign cannot accept stocks, bonds, bars of gold, and Renoir paintings from foreign nationals. But deciding whether truthful information about a competing presidential candidate is a thing of value under the statute is more complicated.
The question is so thorny that judges would likely rely on a doctrine called constitutional avoidance. That rule posits that if a statute is ambiguous between two meanings, one of which is potentially unconstitutional and one of which is safely constitutional, the court should opt for the more narrow, and safely constitutional, interpretation.
A narrow reading of the term thing of value that does not criminalize mere information avoids any potential First Amendment problem. Courts would likely adopt that reading of the law. Good news for Don Jr.
To be sure, trouble may lie ahead for the Presidents first born if evidence emerges that he encouraged or participated in Russian criminality. Perhaps Mueller has or will find statements to the Russians from Trump Jr. or others in the campaign like this is greatget me more. The First Amendment does not protect people who join or abet a crime. Or perhaps the presence of Rinat Akhmetshin, a possible Russian spy, at the meeting will lead to evidence that Trump. Jr. was colluding in espionage.
If anyone in the campaign or the family actually were recruited, that would be a serious crime, but the emails released to date suggest that Trump Jr. had no idea that Akhmetshin would attend.
Such is the irony, and the power, of the right to free speech. It protects to everyone, even members of President Trumps inner circle who may well hold the First Amendment in contempt. The elder Trumps disdain for the media is legendary, and he was just sued for First Amendment violations related to his Twitter account.
The Trump family may not like the First Amendment, but they are going to need it.
David M. Shapiro is the director of appellate litigation for the Roderick and Solange MacArthur Justice Center, a clinical assistant professor of law at Northwestern Pritzker School of Law, Chicago, and a Public Voices Fellow through The OpEd Project. He worked previously as a First Amendment and media lawyer in private practice.
The views expressed by contributors are their own and not the views of The Hill.
Continue reading here:
How the First Amendment could save Don Jr. - The Hill (blog)
- Catholic diocese adds First Amendment argument to Turpin case - Carolina Coast Online - August 6th, 2025 [August 6th, 2025]
- Trump Administration Freezes $339M in UCLA Grants and Accuses the School of Rights Violations - First Amendment Watch - August 6th, 2025 [August 6th, 2025]
- Corporation for Public Broadcasting To Shut Down After Being Defunded by Congress, Targeted by Trump - First Amendment Watch - August 6th, 2025 [August 6th, 2025]
- Whats the First Amendment Got to Do With It? Trumps Defamation Burden Against the Wall Street Journal - Law.com - August 6th, 2025 [August 6th, 2025]
- Tolkkinen: As a recent Minnesota dustup shows, First Amendment auditors with cameras are terrorizing people - Star Tribune - August 3rd, 2025 [August 3rd, 2025]
- First Amendment has limits: Tom Homan insists that Mahmoud Khalil will be deported - the-independent.com - August 3rd, 2025 [August 3rd, 2025]
- First Amendment has limits: Tom Homan insists that Mahmoud Khalil will be deported - MSN - August 3rd, 2025 [August 3rd, 2025]
- Brendan Carr declares victory over the First Amendment - The Verge - August 3rd, 2025 [August 3rd, 2025]
- Chris Hedges: Abolishing the First Amendment - Consortium News - August 1st, 2025 [August 1st, 2025]
- Sean 'Diddy' Combs asks court for acquittal or new trial, says 'freak offs' protected by First Amendment - MSNBC News - August 1st, 2025 [August 1st, 2025]
- 'The First Amendment demands it': Capehart reflects on his decision to leave The Washington Post - MSNBC News - August 1st, 2025 [August 1st, 2025]
- More Than 20 Democratic-Led States Sue Trump Administration Over Planned Parenthood Funding Cuts - First Amendment Watch - August 1st, 2025 [August 1st, 2025]
- Brown University Strikes Agreement With Trump Administration To Restore Lost Federal Funding - First Amendment Watch - August 1st, 2025 [August 1st, 2025]
- News organizations sue Tennessee over police buffer law, citing First Amendment - Knoxville News Sentinel - July 30th, 2025 [July 30th, 2025]
- The ACLU says a New York official violated the NRA's First Amendment rights. They still can't sue her. - Reason Magazine - July 30th, 2025 [July 30th, 2025]
- Forced Labor and the First Amendment - The American Conservative - July 30th, 2025 [July 30th, 2025]
- Chris Hedges: Abolishing the First Amendment - Scheerpost - July 30th, 2025 [July 30th, 2025]
- Chronicle Editorial: Croton-Harmon school district's disdain for the First Amendment costs staff time and taxpayer money. - The Croton Chronicle - July 30th, 2025 [July 30th, 2025]
- Is AI a Horse or a Zebra When It Comes to the First Amendment? - Cato Institute - July 28th, 2025 [July 28th, 2025]
- First Amendment and immunity - Courthouse News Service - July 28th, 2025 [July 28th, 2025]
- Legal Case of Navy Diver Who Sued Newport Beach for First Amendment Violation Advances - California Globe - July 28th, 2025 [July 28th, 2025]
- News organizations sue TN over police buffer law, citing First Amendment - The Tennessean - July 28th, 2025 [July 28th, 2025]
- AFPI Sues Oregon School Activities Association for Silencing Female Athletes First Amendment Rights - America First Policy Institute - July 28th, 2025 [July 28th, 2025]
- NEWTON: Battle between Trump and the First Amendment continues - The Covington News - July 27th, 2025 [July 27th, 2025]
- That eerie sound youre hearing is the First Amendment falling - rawstory.com - July 27th, 2025 [July 27th, 2025]
- TRUMP GOES TOO FAR: Colbert cancellation puts spotlight on Trump war on the First Amendment - MSNBC News - July 27th, 2025 [July 27th, 2025]
- First Amendment doesnt provide the right to be heard, Fourth Circuit finds - Courthouse News Service - July 24th, 2025 [July 24th, 2025]
- Pennsylvania officers face First Amendment lawsuit for trying to criminalize profanity and using patrol car to chase man who recorded police - FIRE |... - July 24th, 2025 [July 24th, 2025]
- Ninth Circuit Reinforces First Amendment Protections of Parent Banned from School District in Response to Speech the District Found Offensive -... - July 24th, 2025 [July 24th, 2025]
- Press Release: Reps. Hank Johnson and Sydney Kamlager-Dove Propose Bill to Safeguard Artists' First Amendment Rights - Quiver Quantitative - July 24th, 2025 [July 24th, 2025]
- What the GOPs Epstein revolt says about the First Amendment - Claremont COURIER - July 24th, 2025 [July 24th, 2025]
- Protesters and demonstrators voice their first amendment right along the street of Canton - 25 News Now - July 24th, 2025 [July 24th, 2025]
- First amendment vs. first-person shooter: Uvalde parents battle with 'Call of Duty' maker in court - Fortune - July 24th, 2025 [July 24th, 2025]
- Columbia University Says It Has Suspended and Expelled Students Who Participated in Protests - First Amendment Watch - July 24th, 2025 [July 24th, 2025]
- Stephen Colberts Late Show Is Canceled by CBS and Will End in May 2026 - First Amendment Watch - July 24th, 2025 [July 24th, 2025]
- US will appeal decision finding punitive executive order against Jenner & Block violates First Amendment - ABA Journal - July 24th, 2025 [July 24th, 2025]
- NPR loses. The First Amendment wins. - The Boston Globe - July 24th, 2025 [July 24th, 2025]
- Trial in AAUP Lawsuit Concludes With Clash Over First Amendment Rights of Noncitizens - The Harvard Crimson - July 22nd, 2025 [July 22nd, 2025]
- Harvard argues in court that Trump administration's funding freeze violated First Amendment - CBS News - July 22nd, 2025 [July 22nd, 2025]
- Harvard argues the government is in violation of the First Amendment. Trumps team frames the lawsuit as a contract dispute - CNN - July 22nd, 2025 [July 22nd, 2025]
- Standing up for Elmo and the First Amendment - Westerly Sun - July 22nd, 2025 [July 22nd, 2025]
- Why the Iowa Senate finally approved enhanced First Amendment protections - Bleeding Heartland - July 22nd, 2025 [July 22nd, 2025]
- First Amendment advocates urge open hearing for San Mateo County sheriff facing removal - The Mercury News - July 18th, 2025 [July 18th, 2025]
- Defeat the Press: How Donald Trumps Attacks on News Outlets Undermine the First Amendment - Variety - July 18th, 2025 [July 18th, 2025]
- An assault on the First Amendment? Yes. But also a lesson in the ethics of reporting police news. - Media Nation - July 18th, 2025 [July 18th, 2025]
- How Donald Trumps Attacks On News Outlets Undermine The First Amendment - TV News Check - July 18th, 2025 [July 18th, 2025]
- Who are First Amendment auditors? Encounters with them prompted police calls in California - Scripps News - July 16th, 2025 [July 16th, 2025]
- Greene County staff permitted to speak to press after pushback from First Amendment groups - The Daily Progress - July 16th, 2025 [July 16th, 2025]
- Death Threats Over Texas Flooding Cartoon Force Museum Journalism Event To Be Postponed - First Amendment Watch - July 16th, 2025 [July 16th, 2025]
- Its the right thing to do: Defense attorney picks up Shasta protester case pro bono, citing First Amendment concerns - Shasta Scout - July 12th, 2025 [July 12th, 2025]
- The First Amendment Protects Ideologically Based Ad Boycotts - Cato Institute - July 12th, 2025 [July 12th, 2025]
- IRS Finally Recognizes That the First Amendment Permits Pastors To Speak From the Pulpit - The Daily Signal - July 12th, 2025 [July 12th, 2025]
- Pocahontas Mayor Reacts Aggressively to Viral First Amendment Auditor - NEA Report - July 12th, 2025 [July 12th, 2025]
- ACLJ's Decades-Long Fight Leads to IRS Recognizing Churches' First Amendment Rights To Speak About Political Issues and Candidates From the Pulpit -... - July 12th, 2025 [July 12th, 2025]
- Central Piedmont fulfilling requests that would lead to First Amendment lawsuit being dropped: Plaintiffs - Queen City News - July 12th, 2025 [July 12th, 2025]
- How Tempe debate over feeding homeless at parks is becoming a First Amendment conversation - KJZZ - July 10th, 2025 [July 10th, 2025]
- IRS: Pastors and Politicians Dont Lose First Amendment Rights in Pulpit - Focus on the Family - July 10th, 2025 [July 10th, 2025]
- Trump admin waffles in court on whether pro-Palestinian foreigners have full First Amendment rights - Politico - July 8th, 2025 [July 8th, 2025]
- Airlines deportation deal with ICE sparks protests and boycott campaign, leading to First Amendment battle - The Free Speech Project - July 8th, 2025 [July 8th, 2025]
- Trump Judges Find No First Amendment Problem With Florida Forcing Teachers to Misgender Themselves - Balls and Strikes - July 8th, 2025 [July 8th, 2025]
- High Court To Hear Street Preacher's First Amendment Case - Law360 - July 6th, 2025 [July 6th, 2025]
- The Columbus Connection First Amendment, Independence Day Thoughts, and Happy Birthday CCN - Columbus County News - July 6th, 2025 [July 6th, 2025]
- Paramounts Trump Lawsuit Settlement: Curtain Call for the First Amendment? (Guest Column) - IMDb - July 6th, 2025 [July 6th, 2025]
- Fourth of July is a reminder to understand your First Amendment rights - The News Journal - July 4th, 2025 [July 4th, 2025]
- Big Tech Can't Hide Behind the First Amendment Anymore | Opinion - Newsweek - July 4th, 2025 [July 4th, 2025]
- FIRE amicus brief: First Amendment bars using schoolkid standards to silence parents' speech - FIRE | Foundation for Individual Rights and Expression - July 4th, 2025 [July 4th, 2025]
- The First Amendment Protects CNN's Reporting on ICEBlock and Iran - Reason Magazine - July 4th, 2025 [July 4th, 2025]
- MCPS to pay $125K to two county residents who sued over alleged First Amendment violations - Bethesda Magazine - July 4th, 2025 [July 4th, 2025]
- Commentary: Winter Garden arrest threat violated First Amendment rights - Orlando Sentinel - July 4th, 2025 [July 4th, 2025]
- First Amendment Expert Responds To BHUSD Policy - Hoover Institution - July 4th, 2025 [July 4th, 2025]
- Donald Trump: the surprise force who saved the First Amendment - Washington Times - July 4th, 2025 [July 4th, 2025]
- Paramount Will Pay $16 Million in Settlement With Trump Over 60 Minutes Interview - First Amendment Watch - July 4th, 2025 [July 4th, 2025]
- Trump Judges Reject First Amendment Challenge and Uphold Florida Law Requiring Teachers to Use Only Pronouns that Align with their Gender at Birth -... - July 4th, 2025 [July 4th, 2025]
- Justice Thomas sounds alarm on courts misapplying First Amendment in political speech cases - Courthouse News - July 2nd, 2025 [July 2nd, 2025]
- 'The full rigor of the Court's resources': Judge warns Trump against witness 'retribution' in First Amendment case over threatened deportations - Law... - July 2nd, 2025 [July 2nd, 2025]
- Federal Appellate Court Finds that School Board President Violated First Amendment in Restricting Followers on Social Media - JD Supra - July 2nd, 2025 [July 2nd, 2025]
- Protecting Kids Shouldnt Mean Weakening the First Amendment - Public Knowledge - July 2nd, 2025 [July 2nd, 2025]
- Opinion - Jesse Green: Congress must not violate First Amendment in fight against anti-semitism - Northern Kentucky Tribune - June 29th, 2025 [June 29th, 2025]
- VICTORY: New York high school to strengthen First Amendment protections following FIRE lawsuit - FIRE | Foundation for Individual Rights and... - June 28th, 2025 [June 28th, 2025]
- FCCs First Amendment Tour Arrives in Kentucky - The Daily Yonder - June 28th, 2025 [June 28th, 2025]