Regarding yesterday’s abominable Supreme Court ruling on Presidential immunity:
In all the public handwringing about it, no one has addressed its truly dire implications for the First Amendment and free speech values.
I have skin in the game since the Supreme Court in 1980 ruled against me in a case involving the President’s supposedly inherent Constitutional authority as commander in chief to brush aside the First Amendment in certain circumstances.
The ruling, U.S. Snepp, allows the president and by extension his executive agencies to impose a system of censorship normally prohibited by the Constitution. It gives them the right to vet anything written by a member of the national security community or any of its alumni, now numbering in the many millions. It also allows them to suppress any part of those writings as long as marginally credible arguments can be made that the nation’s security requires it.
Judges have been directed in other cases to give deference to such arguments – to bend over backwards to credit them, no matter how tenuous or fact-free they may be, since they derive from the President’s national security mandate.
Theoretically the only constraint against government censorship of any variety, beyond the First Amendment itself, is the threat of civil or criminal counter-litigation.
In yesterday’s decision the Court immunized the president, absolutely and/or provisionally, against criminal liability for any official act. The case against me, an official executive act if there ever was one, played out in civil court. But if I were ever to be accused of breaching the judgment against me, I could be facing criminal charges, and this time government lawyers could arguably wrap themselves in Presidential immunity to escape sanction for any excess.
The same is true for criminal cases like those brought against Edward Snowden, the former NSA/CIA employee-turned-leaker, and Julian Assange, the founder of WikiLeaks. Though I have little use for either gentleman, both were prosecuted under criminal statutes for acts involving the publication of (government) information and which therefore have obvious First Amendment overtones.
Next time around, such defendants will be facing government lawyers armed with the knowledge that the President’s own immunity gives them all sorts of latitude to push the envelope, even at extreme cost to our free speech protections.
Doubtless some canny constitutional scholar in sync with the Trump-friendly majority on the Court stands ready to parse my concerns into seemingly negligible hypotheticals. But the President’s newly confirmed “right” to act with impunity, whatever Constitutional rights and norms may be trashed in the bargain, leaves me fearful that our First Principal, free speech, is now vulnerable to rampant pillaging by sycophantic bureaucrats giddy with reflected presidential power.
Welcome to 1984.