Suing the President for First Amendment Violations

From the abstract for Sonja West, Suing the President for First Amendment Violations, 71 Oklahoma Law Review ___ (2018):

On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights?

One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely clear if or how citizens can hold the President responsible for violating their expressive rights.

This Essay explores some of the potential obstacles facing a person or organization bringing a First Amendment lawsuit against the President such as whether the President can violate the First Amendment at all and how a plaintiff might recover for that violation. It concludes by suggesting a few possible approaches to this problem that could help clarify and secure the rights of all Americans to seek justice—even against the President—if their freedoms of speech and press are violated.

— Joe

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