Federal policy on the First Amendment, 2017-2018

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Policy positions Domestic affairs: Abortion • Crime and justice • Education • Energy and the environment • Federal courts • Firearms policy • First Amendment • Healthcare • Immigration • Infrastructure • LGBTQ issues • Marijuana • Puerto Rico • Social welfare programs • Veterans • Voting issues Economic affairs and regulations: Agriculture and food policy • Budget • Financial regulation • Jobs • Social Security • Taxes • Trade Foreign affairs and national security: Afghanistan • Arab states of the Persian Gulf • China • Cuba • Iran • Iran nuclear deal • Islamic State and terrorism • Israel and Palestine • Latin America • Military • NATO • North Korea • Puerto Rico • Russia • Syria • Syrian refugees • Technology, privacy, and cybersecurity

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The protection of constitutional rights was identified as a priority on the Trump administration's official transition website. The website stated Trump's intentions to "defend Americans' fundamental rights to free speech, religious liberty ... The Constitution declares that as Americans we have the right to speak freely, share and live out our beliefs, raise and protect our families, be free from undue governmental abuse, and participate in the public square."

The comments of President Donald Trump and other administration officials on the First Amendment appear below.

This page was updated through 2018. Think something is missing? Please email us at editor@ballotpedia.org.

First Amendment policy in Trump's first year in office

HHS healthcare workers religious freedom

On January 18, 2018, the U.S. Department of Health and Human Services announced new protections for healthcare workers who have religious or moral objects against some medical procedures, including physician-assisted death and abortion. The Trump Administration contended that religious or moral beliefs should not exclude people from the healthcare profession. Opponents of the new protections, including the ACLU, argued that the new policy could negatively impact vulnerable people in need of medical care, especially transgender patients.

Executive order on religious freedom

On May 4, 2017, Trump signed an executive order, Promoting Free Speech and Religious Liberty, which directed the Treasury Department to "not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective." Such political speech would be prohibited under the Johnson Amendment, which bars tax-exempt organizations like churches from supporting or opposing political candidates.

The executive order also instructed the Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services to consider revising existing regulations to address conscience-based objections to the Affordable Care Act mandate requiring coverage of contraception by many employer insurance plans.

Trump administration officials on the First Amendment

Donald Trump

The press

• On October 7, 2017, Trump tweeted, "More and more people are suggesting that Republicans (and me) should be given Equal Time on T.V. when you look at the one-sided coverage?"

• On October 7, 2017, Trump tweeted, ".@NBCNews is so knowingly inaccurate with their reporting. The good news is that the PEOPLE get it, which is really all that matters! Not #1."

• On October 5, 2017, Trump tweeted, "Why Isn't the Senate Intel Committee looking into the Fake News Networks in OUR country to see why so much of our news is just made up-FAKE!"

• On October 4, 2017, in response to stories run by NBC News and other media outlets about his relationship with Secretary of State Rex Tillerson and his handling of the response to the hurricane in Puerto Rico, Trump tweeted, "Wow, so many Fake News stories today. No matter what I do or say, they will not write or speak truth. The Fake News Media is out of control! NBC news is #FakeNews and more dishonest than even CNN. They are a disgrace to good reporting. No wonder their news ratings are way down!"

• During a rally in Harrisburg, Pennsylvania, to commemorate his first 100 days in office on April 29, 2017, Trump criticized the media for being disconnected from Americans and producing negative coverage of his administration. He attended the event in lieu of the White House Correspondents' Association dinner. He said, "Media outlets like CNN and MSNBC are fake news. Fake news. And they're sitting and they're wishing, in Washington—they're watching right now, they're watching. And they would love to be with us right here tonight." He also singled out The New York Times and The Boston Globe in his criticism. "They're incompetent, dishonest people, who, after an election, had to apologize because they covered it, us, me, but all of us—they covered it so badly that they felt they were forced to apologize because their predictions were so bad. ... So here's the story. If the media’s job is to be honest and tell the truth, then I think we would all agree the media deserves a very, very, big fat failing grade," Trump said.

• President Donald Trump criticized The New York Times on March 28, 2017, tweeting that they "would do much better if they were honest." Two days later, he indicated that he might want libel laws to be changed. "The failing @nytimes has disgraced the media world. Gotten me wrong for two solid years. Change libel laws?" Trump tweeted on March 30, 2017.

• Trump announced via Twitter on February 25, 2017, that he would not attend the White House Correspondents’ Association dinner in April. The century-old annual event, which is used to fund scholarships for journalism students, had previously been missed by three other presidents. Richard Nixon and Jimmy Carter both skipped the event twice, and Ronald Reagan did not attend in 1981 while recovering from an assassination attempt. In an interview on February 28, 2017, Trump explained his reasoning: “I believe a lot of the stories are pure fiction, they just pull it out of air. I just thought, in light of the fact of fake news and all of the other things we’re talking about now—I thought it would be inappropriate."

• In a tweet on February 17, 2017, Trump called several media outlets—including The New York Times, NBC News, ABC News, CBS News, and CNN—"fake news media" and "the enemy of the American people." When asked to clarify these statements, White House press secretary Sean Spicer said during a press conference on February 21, 2017, that Trump "has deep respect for the First Amendment … and he has a healthy respect for the press."

Speech

• On January 22, 2017, Donald Trump defended the Women's Marches, tweeting, "Peaceful protests are a hallmark of our democracy. Even if I don't always agree, I recognize the rights of people to express their views."

• Following reports that a flag had been burned at Hampshire College in Massachusetts in protest of Trump's electoral victory, Trump tweeted on November 29, 2016, that flag burning should be prohibited. He wrote, "Nobody should be allowed to burn the American flag—if they do, there must be consequences—perhaps loss of citizenship or year in jail!" Trump spokesman Jason Miller elaborated, "Flag burning should be illegal. The President is a very strong supporter of the First Amendment, but there's a big difference between that and burning the American flag."

Religion

• Speaking at the National Prayer Breakfast on February 2, 2017, Trump said that he would "totally destroy the Johnson Amendment," which bans tax-exempt nonprofits like churches and charities from opposing or endorsing political candidates.

• On September 9, 2016, Trump spoke at the 2016 Values Voters Summit, a gathering of social conservatives and Christian voters. He said, “[In] a Trump administration, our Christian heritage will be cherished, protected, defended like you have never seen before. Believe me. And that includes religious liberty.” He also spoke about the Johnson Amendment, which prohibits tax-exempt organizations from supporting or opposing political candidates. Trump said, “The Johnson Amendment has blocked our pastors and ministers and others from speaking their minds from their own pulpits. If they want to talk about Christianity, if they want to preach, if they want to talk about politics, they’re unable to do so. … If they want to, they take a tremendous risk: that they lose their tax-exempt status. If I become president, we’re going to knock out the Johnson amendment.”

• When asked by Fox Business’ Stuart Varney on October 21, 2015, if the U.S. should adopt the British proposal to close mosques to combat Islamic extremism, Donald Trump said, “Absolutely. I think it’s great.” Varney then questioned if such a policy would be possible in the U.S. due to provisions for religious freedom. Trump said, “Well, I don’t know. I mean, I haven’t heard about the closing of the mosque. It depends, if the mosque is, you know, loaded for bear, I don’t know. You’re going to have to certainly look at it.”

• In September 2015, Trump called the detention of Kim Davis, a Kentucky county clerk who would not issue marriage licenses to same-sex couples, a “messy situation.” He said, “I hated that and now she’s out. But I must tell you that, you know, we are a land of laws — I would like to see her get a different job or at least let the clerks do that particular work. We are…in a position that’s been a terrible situation that’s taken place out there, and I understand both sides of the argument. And I embrace both sides of the argument. … You can embrace both sides of an argument.”

• Trump said in a May 2015 interview that if he were elected president, he would "be the greatest representative of the Christians they've had in a long time."

• In May 2015, Trump denounced the "Draw the Prophet" contest Pamela Geller organized, saying, "This is taunting. And all it does is cause trouble."

Mike Pence

• After signing the Religious Freedom Restoration Act Clarification Bill on April 2, 2015, Mike Pence said, "Last weekend I called upon the Indiana General Assembly to clarify that this new judicial standard would not create a license to discriminate or to deny services to any individual as its critics have alleged. I am grateful for the efforts of legislators, business and other community leaders who came together to forge this clarifying language in the law. Hoosiers deserve to know, that even with this legislation, the Religious Freedom Restoration Act enhances protections for every church, non-profit religious organization or society, religious school, rabbi, priest, preacher, minister or pastor in the review of government action where their religious liberty is infringed. The law also enhances protection in religious liberty cases for groups of individuals and businesses in conscience decisions that do not involve provision of goods and services, employment and housing. ...There will be some who think this legislation goes too far and some who think it does not go far enough, but as governor I must always put the interest of our state first and ask myself every day, ‘What is best for Indiana?’ I believe resolving this controversy and making clear that every person feels welcome and respected in our state is best for Indiana. Our state is rightly celebrated for our pro-business environment, and we enjoy an international reputation for the hospitality, generosity, tolerance and kindness of our people. Hoosier hospitality is not a slogan; it is our way of life. Now that this is behind us, let’s move forward together with a renewed commitment to the civility and respect that make this state great." For Pence's full statement, please click here.

Jeff Sessions

• Attorney General Jeff Sessions described the arrest of WikiLeaks founder Julian Assange as a priority on April 20, 2017. "We are going to step up our effort and already are stepping up our efforts on all leaks," Sessions said.

• During his confirmation hearing on January 10, 2017, Sessions described religious freedom as a high-priority value to be protected. He said, "There are situations in which I believe we can reach accommodations that would allow the religious beliefs of persons to be honored in some fashion as opposed to just dictating everything under a single provision or policy. We should recognize religious freedom. It will be a very high priority of mine.”

• On June 17, 2015, Sessions cosponsored S 1598 - First Amendment Defense Act, which sought to prevent "the federal government from taking discriminatory action against a person on the basis that such person believes or acts in accordance with a religious belief or moral conviction that: (1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage."

• In June 2006, Sessions voted in favor of a resolution "proposing an amendment to the Constitution...authorizing Congress to prohibit the physical desecration of the flag of the United States." The measure narrowly failed in the Senate by a vote for 66-34.

• During the 2006 confirmation hearing for Samuel Alito, Sessions argued that the Ninth Circuit decision in Elk Grove Unified School District v. Newdow, which held that including the phrase "under God" in the "Pledge of Allegiance" was unconstitutional, was wrong. The Supreme Court later reversed the decision on a procedural matter. "The Supreme Court sort of side-stepped the fundamental issue and said that there was not standing on behalf of Mr. Newdow, and sent that back to a lower court. He now got him some plaintiffs that apparently have standing. He has taken it to the district court in California, and he has won that case. They have concluded that the Ninth Circuit law remains in effect so that 20 percent of the population of the United States, really, are not able, if you follow that opinion, to render the Pledge of Allegiance. Yet we have chaplains and In God We Trust in the Senate chamber and those kind of issues. So I don't believe that that is founded in the Constitution," Sessions said.

Mike Pompeo

• During remarks at the Center for Strategic and International Studies on April 13, 2017, CIA Director Mike Pompeo called WikiLeaks a hostile intelligence service. He said, "WikiLeaks walks like a hostile intelligence service and talks like a hostile intelligence service. It has encouraged its followers to find jobs at CIA in order to obtain intelligence. It directed Chelsea Manning in her theft of specific secret information. And it overwhelmingly focuses on the United States, while seeking support from anti-democratic countries and organizations. It is time to call out WikiLeaks for what it really is—a non-state hostile intelligence service often abetted by state actors like Russia." During the 2016 presidential election, Pompeo directed his Twitter followers to a WikiLeaks release of emails obtained from Democratic National Committee members in July 2016.

Recent news

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Federal policy on the First Amendment, 2017-2018 - Google News