Zick’s New Book Examines the First Amendment in the Trump Era

  • Pro-First Amendment
    Pro-First Amendment  Prof. Zick believes the principles involved in the lessons he's drawing about the First Amendment in the current era are useful for readers to know and to embrace regardless of their political beliefs.  
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Writing his latest book on the First Amendment—his fourth in 10 years—Professor Timothy Zick decided to try something a little different. His new volume would be slimmer, more accessible to general audiences, and ripped from the latest headlines.

And as of October 28, it’s also in eager readers’ hands.

In The First Amendment in the Trump Era (Oxford University Press, pp. 192), Zick, the John Marshall Professor of Government and Citizenship at William & Mary Law School, not only examines the growing number of First Amendment controversies in the past three years, but also connects present concerns to episodes throughout American history. He also relates recent First Amendment controversies to the concept of dissent.

Indeed, dissent looms large, beginning when Zick dedicates his book to “all the noisy dissenters—past, present, and future.”

Zick believes that dissenters deserve a significant amount of credit for doing the hard work of checking governments and influencing citizens, often at considerable cost to their own safety and livelihoods. Although he has not chosen the path of activism, Zick’s First Amendment scholarship highlights public contention and dissent. “I am a true believer in the power of dissent to facilitate social, political and constitutional change,” Zick said.

Zick wrote his most recent book with minimal legal jargon or extensive discussions of cases or doctrines. He wants it to be read by people whether they support the current president or not.

“I think the principles involved in the lessons I’m drawing to the current era are useful to know and to embrace regardless of your partisan stripe,” Zick said. “I didn’t want to write a book that was anti-Trump so much as pro-First Amendment.”

Cracks in that amendment were forming well before the 2016 election, the result of what Zick refers to as “preexisting conditions.” Among them were the weakening of the institutional press, heightened political polarization, the rise of the Internet and the distrust of experts and institutions—all of which the President took advantage of when the time arose.

“Digitized culture gives you democratic speech—cheap and efficient speech,” Zick said. “But it also gives you a culture that trades on instant conflict, hate and take-downs; it’s a very mixed bag.” Zick added, “Trump is an archetype of the era—hyper-communicative, hyper-combative and deeply polarizing.”

Witnessing increasingly strident speech before and during the 2016 campaign, Zick knew a book was imminent. He noted that candidate Trump incited his supporters to “rough up” protesters, promised to “open up” the libel laws, and even proposed shutting down parts of the Internet to thwart terrorists. Many of these themes and patterns continued after Trump became president.

“As of a year into his presidency, I thought there was already enough material for a book,” Zick said. “And the President just kept on talking—and tweeting.”

With more and more examples piling up after the publication of the book, and the possibility of a second Trump administration, Zick does not rule out a second edition with, at the very least, an updated introduction or prologue.

“I don’t know if Trump will emphasize new themes or issues if he is re-elected or just go back to the old attacks,” Zick said, “So you just might get more examples of things that I point out in the book.” Even so, the president’s views on free press and speech, and those of his supporters, are worth examining.

As noted, this book is very different from Zick’s previous works. His other books include Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge UP, 2009), The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties (Cambridge UP, 2014), and The Dynamic Free Speech Clause: Freedom of Speech and Its Relation to Other Constitutional Rights (Oxford UP, 2018). These books were written primarily for academic audiences. The current book is aimed at a much broader audience and is about events happening in real time.

“It’s happening in front of you, and that poses challenges for trying to write with some dispatch, but it also means that the book connects to current and timely concerns,” Zick said.

Pondering an audience beyond the academy, Zick hopes that readers will learn about the many misperceptions people have about the First Amendment. It’s one thing, for example, for a president to speak about a subject from a bully pulpit, Zick says, but it’s quite another for him to coerce others or regulate speech.

And then there is the misunderstanding about the press in general—the idea that there is a separate Constitutional provision—the Free Press Clause—that gives the institutional press a broad set of rights or immunities. The reality is that the institutional press does not generally have any special rights and privileges. The press rests on far shakier constitutional ground than many Americans realize.

“I think it’s important to remember that the press has always been both problematic and essential,” Zick says. “It’s always had excesses like any other institution, but it’s also been critically important to self-government, the search for truth, and other First Amendment values.”

Above all, Zick hopes readers learn about the value of dissent. He notes that noisy dissent has long been considered part of the American ethos, but the reality is that the citizenry have an increasingly low tolerance for opinions that they don’t agree with, from those who attend Trump rallies to students on college campuses.

Although headlines seem more clamorous as a new election looms, Zick nevertheless feels cautiously optimistic, particularly given the evidence that people still exercise their right to disagree and disrupt. He cites as examples the March for Life, the Women’s March after the 2016 election, and protests at airports after the initiation of the Muslim travel ban.

“These were pockets that suggest dissent is very much alive, and people haven’t caved into efforts to suppress public contention,” Zick said.

Early reviews of The First Amendment in the Trump Era have been favorable. Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago Law School, says the book “makes a truly important contribution to our understanding of the contemporary First Amendment.” Nadine Strossen, the John Marshall Harlan II Professor of Law at New York Law School and past president of the ACLU, calls the book a “must read” and says, “Zick’s book shows how the lessons of the past can helpfully guide us through the unique First Amendment challenges we face today.”

Zick says his next project might be about public protests. In the meantime, he is enjoying talking about his latest book and sharing it with others.

“I have friends and neighbors who are reading it, and asking questions,” Zick says. “Those conversations have been gratifying, and I hope others will learn about the First Amendment by reading the book.”

To order this book, please visit the Oxford University Press page.

About Professor Zick

Professor Zick graduated summa cum laude from Indiana University and summa cum laude from Georgetown University Law Center, where he received the Francis E. Lucey, S.J. Award for graduating first in his class. While at Georgetown, he was a Notes and Comments editor of the Georgetown Law Journal. Following law school, he was an associate with the law firms of Williams and Connolly in Washington, D.C., where he assisted in the defense of congressional term limits in the Supreme Court of the United States, and Foley Hoag in Boston.

Zick served as a law clerk to the Honorable Levin H. Campbell of the United States Court of Appeals for the First Circuit. He also served as a Trial Attorney in the Federal Programs Branch of the United States Department of Justice, where he defended the constitutionality and legality of a variety of federal programs and statutes.

A frequent commentator in local, national, and international media regarding public protests and other First Amendment concerns, Zick testified before Congress on the Occupy Wall Street protests and rights of free speech, assembly, and petition. He received the Plumeri Award for Faculty Excellence in 2011, 2013 and 2017.

About William & Mary Law School

Thomas Jefferson founded William & Mary Law School in 1779 to train leaders for the new nation. Now in its third century, America's oldest law school continues its historic mission of educating citizen lawyers who are prepared both to lead and to serve.