Trump Campaign Statements Protected in Travel Ban Case, Group Says

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By Kenneth P. Doyle

Relying on statements President Donald Trump made during his campaign to argue against his proposed immigration restrictions could chill free speech in campaigns, posing “an unacceptable risk to First Amendment interests,” according to a new brief filed with the Supreme Court ( Trump v. International Refugee Assistance Project, U.S. No. 16-1436, brief filed 6/9/17).

The friend-of-the-court brief filed by the nonprofits Center for Competitive Politics (CCP) and Public Policy Legal Institute (PPLI) urges the high court to grant review of a lower court decision that struck down Trump’s executive order banning travel to the U.S. by individuals from six Muslim-majority countries. Challengers of the ban cited Trump’s campaign statements to argue that the travel ban targets Muslims and thus violates religious freedom, also guaranteed by the First Amendment.

The Supreme Court is now weighing a request by the Trump administration to stay a decision striking down the travel ban, which was handed down last month by the U.S. Court of Appeals for the Fourth Circuit. Meanwhile, the U.S. Court of Appeals for the Ninth Circuit issued a decision June 12 in another challenge, also ruling against the travel ban.

Campaign Finance Cases Cited

The Supreme Court brief filed by CCP and PPLI argues that the Supreme Court should take the travel-ban case in order to uphold precedents established in recent campaign finance cases, such as Citizens United v. Federal Election Commission and McCutcheon v. FEC, and other cases. In these rulings, the court majority provided broad First Amendment protection to campaign speech, the brief said.

Other observers also have suggested that arguments emphasizing First Amendment protections for campaign speech could play a significant role in the travel ban case. Richard Hasen, an election law expert and University of California Irvine law professor, noted in an article posted on his Election Law Blog a dissent by Ninth Circuit Judge Alex Kozinski at an erlier stage of the travel-ban litigation. The dissent offered a possible “lifeline” to Trump by arguing that it would violate the First Amendment to take Trump’s campaign statements “evincing anti-Muslim animus seriously (or literally),” Hasen said.

“It’s an argument that just might attract the [Supreme] Court’s conservatives ... and lead them to reject constitutional challenges to the new executive order,” Hasen said. “And that would be a shame, not just for this case, but for all cases raising claims of government bias.”

Review of Campaign Speech ‘Chills Expression’

The new Supreme Court brief, filed June 9 and signed by attorney Barnaby Zall, Allen Dickerson and Zac Morgan of CCP, said using Trump’s campaign statements to fight the travel ban would damage the ability of future candidates to convey their messages to voters.

“A review of campaign speech—even speech that sheds light on the reasons for later official action—chills expression and conflicts with numerous long-standing protections for campaign speech,” the brief said. It cited the Supreme Court’s 2014 ruling in the McCutcheon case, which said the First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office.”

CCP has helped spearhead numerous challenges to federal and state campaign finance laws, arguing that government restrictions on campaign money run afoul of First Amendment free-speech protections. The nonprofit group also has challenged other restrictions on campaigns, including state rules seeking to outlaw false statements by candidates.

CCP waded into one recent case, Susan B. Anthony List v. Driehaus decided by the Supreme Court in 2014, which ruled in favor of challengers to an Ohio law prohibiting false statements during a political campaign. The threat of enforcement of such a law, the justices said in a unanimous ruling, was “of particular concern because of the burden ... on electoral speech.”

Dickerson, CCP’s legal director, said in a statement regarding the new Supreme Court brief in the travel-ban case: “If courts begin probing campaign statements to determine the legality of later official actions, candidates will be less inclined to give their frank opinions. The true victims of this principle are voters, who rely on unfiltered campaign speech to evaluate candidates’ fitness for office.”

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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