Free Speech Dilemma Caused by Ruling on President Trump’s “Travel Ban”

CCP and PPLI file amicus brief asking Supreme Court to review Fourth Circuit reasoning

Alexandria, VA – May courts impose a “welcome restraint” on campaign speech protected by the First Amendment? The Center for Competitive Politics (CCP) and the Public Policy Legal Institute (PPLI) are asking the Supreme Court to review a Fourth Circuit ruling that does just that.

In Int’l Refugee Assistance Project, et al. v. Trump, et al., the United States Court of Appeals for the Fourth Circuit rested its decision, in part, on statements made on the campaign trail by then-candidate Donald Trump. The majority acknowledged that doing so might “chill[] campaign promises” but deemed this a “welcome restraint” that would only apply to a “highly unique set of circumstances.”

The Fourth Circuit erred on both counts, according to a brief filed Friday by CCP and PPLI. Candidate speech has traditionally received a high level of protection that conflicts with the majority’s novel “welcome restraint” analysis. In addition, that analysis could have far broader applications than the majority anticipates.

“If courts begin probing campaign statements to determine the legality of later official actions, candidates will be less inclined to give their frank opinions,” said CCP Legal Director Allen Dickerson. “The true victims of this principle are voters, who rely on unfiltered campaign speech to evaluate candidates’ fitness for office.”

The majority opinion does not cite any prior case where a court relied principally on campaign statements in a similar context. One member of the majority wrote separately to express her belief that the Fourth Circuit could have arrived at the same result “for more practical reasons,” without referencing campaign speech.

Once confirmed, other applications of the Fourth Circuit’s “welcome restraint” analysis are sure to follow. Campaign speech at all levels of government makes frequent use of divisive rhetoric, exaggeration, vilification, and falsehoods. Nonetheless, the Supreme Court has consistently provided strong protection to political speech, in part because those excesses give voters important information about candidates’ character and fitness for office.

“[T]he people of this nation have ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy,” the Court explained in New York Times v. Sullivan.

The Fourth Circuit majority may hope that its “welcome restraint” analysis is a one-time solution to a one-off controversy. More likely, it will open the door for other courts to begin probing campaign speech in cases that bear little resemblance to IRAP v. Trump. The Supreme Court should have a say before that is allowed to happen.

The Center for Competitive Politics (CCP) is America’s largest nonprofit working solely to promote and defend First Amendment rights to free political speech, press, assembly, and petition. The Public Policy Legal Institute is a national nonprofit educational organization dedicated to protecting the right of Americans to advocate for and against public policies.

The brief filed Friday can be read here. To read the Fourth Circuit’s opinion, click here.