Does former CIA director John Brennan have a First Amendment case against President Trump for pulling Brennan’s national security clearance?
Definitely — in the court of public opinion, if not automatically in a court of law.
Our freedom of speech is most protected when we choose to speak out on matters of public concern; in short, when we join in “political speech.” We are protected against government censorship in advance of such speech, and from government retaliation afterwards, and even — though least often considered — also protected against being forced to speak if we chose not to.
So when Trump yanked Brennan’s clearance, while also threatening to do the same to about a dozen other former or current government officials, we all should view this with concern — the nonpartisan kind of concern, about constitutional rights, as tough as that may be to do in these times.
Trump says Brennan’s critiques of him feeds into enemy efforts to ‘sow division’
Clearly, Brennan is a vocal, frequent critic of Trump’s conduct in office. After Trump participated in July in a joint press conference with Russian President Vladimir Putin, Brennan said Trump’s failure to vigorously confront Putin over Russian meddling in U.S. elections was “nothing less than treasonous” and “giving aid and comfort to the enemy.”
Brennan often appears on NBC and MSNBC — frequent targets of Trump’s criticism of the news media as “fake news” — where he is a paid contributor, and also he offers commentary in The New York Times and other cable and print news outlets.
From a First Amendment standpoint, none of those “credentials” would automatically justify government retaliation — paid, unpaid, on network TV or in a letter to a friend, political ally or foe — free speech protection still applies. And as yet, there’s no claim from the White House of some action by Brennan that would historically justify pulling his access, such as revealing classified information.
The White House has made some effort to counter free speech concerns. What Trump termed as Brennan’s “increasingly frenzied commentary” feeds into “the very aim of our adversaries which is to sow division and chaos,” White House Press Secretary Sarah Huckabee Sanders said a day after the revocation — adding that such actions were “inconsistent” with holding a national security clearance.
But the president later said in a Wall Street Journal interview that, “Mr. Brennan was among those he held responsible for the investigation…looking into whether there was collusion between the Trump campaign and the Kremlin” — which would seem to place things back into the area of attempt to chill the speech of those who would question or oppose him.
First Amendment has shielded past government attempts to stifle speech
Such a flap over national security clearances is apparently unprecedented. But attempts by government to censor contrary speech are not. From action against war protesters to attempts to stifle the free speech and free press rights of civil rights organizations and figures, the First Amendment has repeatedly had to shield those whom government officials would attempt to stifle or frighten into silence.
Over the years, the First Amendment’s protection of free speech has been buttressed by a host of U.S. Supreme Court decisions dealing with direct and indirect challenges, from protests involving the U.S. flag, to Civil Rights era attempts to silence the NAACP through a demand for its membership lists, to providing protection even for inadvertent errors in comments about public officials and public figures.
It was in the seminal 1964 Supreme Court decision involving public figures, New York Times v. Sullivan, that — in a bit of name-related irony — the late Justice William J. Brennan wrote of a “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on the government and public officials.”
Armed with those words, Trump’s action would seem to be out of order — at least in the court of public opinion. But in the actual courts, great deference is generally given to the President absent some specific constitutional restraint. As an example, see the courts’ reluctance earlier this year to limit Trump’s restrictive immigration regulations.
The aforementioned “division and chaos” rationale might well be enough for a court to turn back a legal challenge by Brennan — though if Trump extends the revocations to others without more justification than a link to the Russian election investigation, it would seem more vendetta than vetting.
Yes, Brennan has not been silenced by losing his clearance. But others less well off or more dependent on such clearances to continue in government jobs or work with outside contractors may well decide not to speak for fear of such “punishment.”
Our nation’s founders built into the Bill of Rights such unprecedented protection for free speech, because they had first-hand experience with a system stacked to prevent and punish critics of the Crown.
Those founders saw — as did Justice Brennan two centuries later — the value to the nation and to democracy of unrestrained debate and discourse on public issues in what has come to be called “the marketplace of ideas.”
Clearly, we need to hear from Trump, Brennan and former and current officials and government staffers on matters that are controversial. Let the comments — and tweets — fly, for us all to hear.
A good approach in the era of King George, and no less valuable in the time of Trump.