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The First Amendment to the US Constitution reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (Emphasis Mine)

Since the Amendment begins with the clause "Congress shall make no law...," does that mean the president is free to pass executive orders infringing on the specific rights enumerated? I'm reading it as as long as Congress doesn't pass the law, then violations are permissible, subject only to impeachment.

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    This isn't really relevant any more, but, until the passage of the 14th Amendment, individual states could limit free speech. – barrycarter Sep 24 at 16:26
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  • Note that the First Amendment certainly applies to judicial actions such as gag orders. I see no reason it should not apply to the executive branch. – Kevin Sep 24 at 17:05
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    @phoog Makes me wonder if this isn't off topic here. Isn't this a matter of law rather than politics? – JollyJoker Sep 25 at 12:25
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    @JollyJoker Take it to meta, This would be an interesting discussion as to where the line is. – Chris Cudmore Sep 25 at 13:14
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The reason this isn't a loophole is that The President doesn't have the power to make laws at all, only Congress can do that. Thanks to the vast expansion in the power of the Executive branch in recent decades, Executive Orders certainly seem like laws which The President can make on their own. Legally, though, they are actually just instructions to employees of the Executive Branch on how to interpret laws passed by Congress.

So, while The President could attempt to use Executive Orders to limit Constitutional rights, the authority of that order would be rooted, however tenuously, in a law passed by Congress – and it could be found to violate the Constitution by the courts.

The U.S. Supreme Court has held that all executive orders from the president of the United States must be supported by the Constitution, whether from a clause granting specific power, or by Congress delegating such to the executive branch. Specifically, such orders must be rooted in Article II of the US Constitution or enacted by the congress in statutes.

https://en.wikipedia.org/wiki/Executive_order#Basis_in_the_United_States_Constitution

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    cough cough alien and sedition acts – Alec Alameddine Sep 26 at 2:17
  • @AlecAlameddine, not sure what you mean, but alien and sedition acts are an act of congress, not an executive order – Frank Cedeno Sep 27 at 12:38
  • @FrankCedeno I think it’s because they’re an example of the President violating constitutional rights using a power given to them by Congress. – divibisan Sep 27 at 14:21
  • @divibisan, I assume it is a reference to EO 9066 and its connection to the internment of Citizens of Japanese ancestry. While the internment was a violation of civil liberties, from a strictly academic position, the Executive order did not order the internment. That was actually another act of congress – Frank Cedeno Sep 27 at 17:58
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One of the less discussed exceptions to the First Amendment is that the Government may restrict speech in it's capacity as an employer as if it was a private employer. That is to say that employees of the Executive Branch (the largest segment of federal employees, given that this includes the U.S. Military) are allowed to make reasonable restrictions on workplace speech and not violate the first amendment. Typically these are only enforceable when the speech is made while on duty or acting as a representative of the government. The military is highly restricted as they are technically 24/7 duty of all individuals.

The Hatch Act is a good guide for some of the restrictions on speech that executive employees can not take part in (mostly it relates to political campaigns) and binds different departments differently. As a general rule, these bindings apply only to employees of the executive branch of government who are not elected (The President and Vice President) or directly appointed officers of the executive (i.e. any post that requires advice and consent of the United States Senate) as those roles are inherently political. Political campaigning on government equipment is not allowed in any branch (congress members are not allowed to e-mail campaign materials from computers purchased by tax dollars or ask their congressional staffers to do so.).

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    The military didn't have much to do with the fact that the executive branch is the largest employer. The proportion of civilian federal employees working for the executive branch is 97.6%. – phoog Sep 24 at 16:49
  • It is, however, larger then any single government agency comparatively and the comment was meant to discount any employment in the Legislature and Judiciary. And my meaning was refering to the DOD, which is both mixed Military-Civilian employment, though the bulk is Military. It's not to suggest that the bulk of government employees are Military but that the single largest employer in the government is the military and is an executive department. – hszmv Sep 24 at 18:03
  • Indeed, Wikipedia says it's the largest employer in the world. But even if you excluded civilian DoD employees, executive employees would far outnumber judicial and legislative employees. It's not that surprising, really. – phoog Sep 24 at 18:11
  • This seems to be answering a different question. – Barmar Sep 25 at 19:25
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The president can always try (so can Congress). But the problem is that the Supreme Court can always rule against the order if and when it becomes contested in court. And if the order blatantly violates freedom of speech, then the Supreme Court will almost certainly strike it down.

In other words, the Supreme Court is the final judge of whether a law/order is unconstitutional. Let me add that the Supreme Court also decides whether or not this applies to the president's orders.

What happens then if the Supreme Court is packed completely full of flunkies to the president? Then theoretically the Court might let the president do whatever he wants. But I think that's unlikely to happen, because any SC that did this would quickly lose any legitimacy as a court. And Justices care a lot about their legitimacy, because that's all the authority they have.

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    Getting to the unanswerable part... Would the "applies to Congress only..." argument be given due consideration by the court or would it be dismissed out of hand? – Chris Cudmore Sep 24 at 15:11
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    Well, it's a little tricky, because technically the president has no power to make laws at all. That's the main reason why his office is not mentioned in this amendment. Orders are something different. But the whole point of having human judges is (ideally) to spot loopholes like this and make sure malicious office-holders can't exploit them to bad ends. That said, sometimes judges have really contorted themselves to justify ridiculous conclusions, so it really just depends on the judge(s). – klojj Sep 24 at 15:13
  • @ChrisCudmore The congress part still applies, since it is the congress that confirms the election of each president after the electoral collage votes. – bobsburner Sep 25 at 8:20
  • Why can the Supreme Court "always rule against the order" if an action by the President (rather than Congress) isn't subject to the First Amendment? – Barmar Sep 25 at 19:29
  • Are you saying that SCOTUS can unilaterally decide that the words "Congress shall make no laws" actually mean "Congress shall make no laws, and the President shall make no orders"? Should they get seats on the boards of all the dictionary companies? – Barmar Sep 25 at 19:31
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The question highlights a common misconception as to what executive orders are. Executive orders are not regulations, rules or laws. Executive orders are a performance of the office as the chief law enforcer. With that in mind, what Executive orders are issued is to concentrate resources on enforcement existing laws or to remove resources from enforcing existing laws.

An executive order cannot be issued in connection to laws that do not exist. For example, your question implies that a President can send out law enforcement to arrest people who violate some non-existent law that the President thinks up. Once the police arrest you and get you to go to court, there has to be a law that the arrestee violated. If the law does not exist, the judge will just sit there unable to inflict punishment.

So the answer is No because there is no path for the President to make any law with punishment.

That being said, there are bureaucracies that do exist that can make their own rules, exist outside presidential and congressional support and have teeth given to them by congress. That is the executive branch bureaucracies such as the EPA, FCC, USDA, etc. They can certainly eat away at the first amendment and have. If you worry about losing first amendment rights, that is where abuses are rampant.

  • Question: if an agency such as the FCC or the EPA makes a rule that infringes on a US citizen’s first amendment rights, is there something that prevents the US citizen from sueing appropriately? Shouldn’t a first amendment violation issued by any of these agencies be shot down by the Supreme Court? I’m not a US citizen or resident so please excuse my ignorance in this matter. – Jan Sep 24 at 16:18
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    @Jan a citizen whose first amendment rights have been infringed by an executive agency can sue in federal district court. The court's decision can be appealed before the appropriate court of appeals, whose decision can be appealed before the supreme court. More likely, however, the citizen will exercise the right of free speech and then be sued by the agency for violating the regulation in question, the citizen using the first amendment as the basis for the defense. The power to make regulations is delegated by congress. – phoog Sep 24 at 16:57
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    @Jan The First Amendment applies to all state action, period. See Shelley v. Kramer and many other cases. – David Schwartz Sep 25 at 2:05
  • The most recent case where SCOTUS affirmed first amendment rights over the rulings of an executive agency is Matal V. Tam. The USPTO refused to register a trademark to the Asian musical group "The Slants", because it was their policy not to allow tradmarks with "disparaging" terms. The court ruled 8-0 in favor of the band. – Lee Daniel Crocker Sep 25 at 21:39
  • @phoog comment is right on the money. However, I need to emphasize that this matter is not simply one of lawyers battling it out in the courtroom. There are Executive branch bureaucracies rules and regulations that have resulted in prison time, property confiscation and lives ruined. Sometimes in violation of the protections of the 1st amendment. The important point is that these bureaucrats have not been elected, are in many cases anonymous and may spend their entire careers at the same agency. The irony is in many cases these agencies were created by republicans to appease progressives – Frank Cedeno Sep 27 at 12:50
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The answer is yes, it just depends on how it is done so to get away with it and, more and more, on the political climate. One of such ways is to have an event that leads to enough people demand the president (or whoever) to "do something". Politicians know it is a career-ending move if they are not seen acting, looking outraged, shouting, and creating new laws and decrees immediately after a crisis. And, at that time the people are quite willing on losing a few freedoms here and there that otherwise they would not if they were calmer.

Here is an example: want to justify putting cameras all over cities and tapping all social media sites? Sell that as to "protect the children" from, say, child molesters or school shootings. Now you make it much harder for a group to legally challenge that: even though they might win on the grounds of violation of the First Amendment, they might be hesitant of the bad publicity. Another example was the Patriot Act. ACLU dropped defending a cause they were fighting on principle because some of its largest sponsors reminded them it was not socially acceptable.

  • Please add some references to support your answer. Now it seem more of an anecdote than an answer. Did those examples have to do with the first amendment? – JJ for Transparency and Monica Sep 25 at 10:53
  • These are examples of 4A questions caused by Congressional action. The 1A has substantially more precedent supporting near-absolutism. – gormadoc Sep 25 at 16:39

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