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….
he 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.”