President Trump’s Twitter-Bashing of Judges Used to Be Against the Law

“At the beginning of the 20th century he could have been severely punished” for criticizing the judiciary, First Amendment attorney Floyd Abrams tells TheWrap

President Donald Trump took to Twitter on Wednesday to bash yet another judge who ruled against him.

But Trump should be glad that judges have expanded First Amendment rights over the past century, because back in the good old days of the early 1900s, criticizing a judge meant a jail term in some states, according to esteemed First Amendment attorney Floyd Abrams.

“He’s certainly supported in that speech. Presidents have first amendment rights too,” Abrams told TheWrap. “But it is amazing to even contemplate that at the beginning of the 20th century that he could have been severely punished … for saying just what he said.”

In a series of tweets Wednesday, Trump blasted judges in the U.S. 9th Circuit Court of Appeals for blocking his immigration ban that has been dubbed a “Muslim ban” and blocking his bid to withdraw federal funding from sanctuary cities.

“First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities — both ridiculous rulings. See you in the Supreme Court!” Trump wrote.

Trump has criticized several judges for ruling against him, calling them “so-called judges,” “biased,” among other jabs.

But thanks to the free speech protections created by more modern Supreme Court rulings, Trump can continue his controversial practice of tweeting out criticisms of court decisions he doesn’t like without fear of going to jail. “He should be grateful indeed that he lives in a country with our level of protection,” Abrams said.

 

In his new book, “The Soul of the First Amendment,” Abrams recounts how a managing editor and reporter for the Chicago American were sentenced to jail in 1901 for criticizing a court decision. The sentencing judge said “if the matter published were to go unnoticed by the court it paved the way for other attacks, and that the judiciary, if not held, in respect, would fall, with all democratic government,” Abrams reported.

While Trump has broad free speech rights, the one thing he cannot do under the First Amendment is use the courts to block media reports about leaked documents, Abrams told TheWrap.

Abrams gives the example of Trump’s tax income returns, which were leaked to the New York Times last year.

“With Trump’s taxes . . . because it is so hard to get a prior restraint,” Abrams said, reporters are free to call Trump and ask him to comment about leaked documents without any fear that he could run to court and win an order blocking publication.”

Abrams should know: He helped win the 1971 Supreme Court decision allowing the New York Times and the Washington Post to publish the Pentagon Papers.

In that case, the Court unanimously denied the Nixon administration’s demand for a court order blocking publication of 7,000 pages of classified government documents that revealed four administrations had lied to the American public and Congress about the Vietnam War, and that Nixon had secretly expanded bombing to neighboring countries.

But Abrams has gone from First Amendment hero in the Pentagon Papers case to somewhat of a First Amendment pariah for his work in the notorious 2010 Citizens United case. The Supreme Court reaffirmed its ruling that money is speech, and that corporations and unions have a First Amendment right to spend unlimited amounts of money on political campaigns through independent advocacy campaigns.

“[Keith] Olbermann compared me to a Nazi” for helping win the Citizens United case, Abrams said, referring to the then-MSNBC commentator. “He said I was the Quisling of the First Amendment, and I thought, wow, that’s not just . . . over the top, but it was strange, the very the brutality of the comment, the degree to which that case seemed to so many people to be not just wrong, but illegitimate.”

Abrams is quick to point out that he did not represent the plaintiff, nonprofit corporation Citizens United, but he did represent Republican Sen. Mitch McConnell in a friend-of-the-court brief that advocated on behalf of  Citizens United. Abrams participated in oral arguments, urging the court to issue an expansive ruling.

Abrams does not regret working for the side of the corporations in Citizens United. “It’s a learning process, to be in a First Amendment case . . . on the less popular side,” he said. “I’m not sorry.”

The New York-based attorney, who is 80 and still carries a full case load, said he wrote his 137-page book to teach non-lawyers about the history of the First Amendment and how its expansive protection for ordinary citizens and reporters has created a more open society than in Europe.