Can a US president selectively enforce laws to have the effect of chilling free speech?

Question

I've been looking at the 1st amendment of the US constitution recently, and its quite obvious that the interpretation of it in the courts through case law has grown quite a lot richer than the text of the amendment in the first place. The text speaks of forbidding passing laws to abridge the freedom of speech. On the surface this says nothing about taking existing laws and applying them selectively to chill free speech. However, does the case law suggest that such selective actions would be illegal?

Answer 1

Selective prosecution based on an impermissible motive (such as viewpoint-based discrimination) is grounds to dismiss a criminal case. A 2024 decision on this issue in the 9th Circuit Court of Appeals is US v Rundo. In this case the district court dismissed a criminal indictment of violating the Anti-Riot Act against two members of a far right organization on the basis that members of far left organizations committing substantially the same crimes at the same protests were not indicted. In this case the appellate court found against the criminal defendants, so the case is currently reinstated, but it still explains the requirements to dismiss a case for this reason.

The district court concluded that the government prosecuted RAM members such as Defendants while ignoring the violence of members of Antifa and related far left groups because RAM engaged in what the government and many believe is more offensive speech.

On a selective prosecution claim, the defendant bears the burden to demonstrate that (1) other similarly situated individuals have not been prosecuted and (2) his prosecution was based on an impermissible motive

As to the first prong, the panel held that Rundo did not meet his burden to establish that similarly situated individuals were not prosecuted, that the district court erred by comparing collective conduct to individual conduct when it referred broadly to “Antifa and far-left groups” and comparing them to “Defendants,” and that the district court erred in holding that the individual Antifa members it did discuss were similarly situated to Rundo.

As to the second prong, the panel held that Rundo failed to meet his burden to demonstrate that his prosecution was based on an impermissible motive. The panel explained that timing is a permissible reason to selectively prosecute; that Defendants’ statistics are unimpressive; and that Defendants’ other alleged sources of improper motive—a press release by the U.S. Attorney’s Office published after Rundo’s indictment was issued, alleged changes in charging decisions after Charlottesville, and the government’s own invocation of Defendants’ speech in its papers—were insufficient.

To establish discriminatory effect, a defendant must show that the comparator is “the same as the defendant in all relevant respects, except that defendant was, for instance, exercising his first amendment rights.” Aguilar, 883 F.2d at 706.

Answer 2

This is pretty much the fact pattern of Yick Wo v. Hopkins, 118 U.S. 356 (1886):

A San Francisco ordinance required a laundry permit to operate in a wooden building. The ordinance itself was perfectly legal, contant neutral, and applied to all laundries. And licenses were given out to people of all types.

But in or around 1885, 199 out of 200 Chinese-owned laundry license renewals were denied, while only 1 of the 120 other renewals was denied. This made the law unconstitutional as applied, because it was used to target people of Chinese descent due to selective enforcement:

An administration of a [law] violates the provisions of the Constitution of the United States if it makes arbitrary and unjust discriminations, founded on differences of race between persons otherwise in similar circumstances.

Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal
_{Page 118 U. S. 374}
hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. This principle of interpretation has been sanctioned by this court in Henderson v. Mayor of New York, 92 U. S. 259; Chy Lung v. Freeman, 92 U. S. 275; Ex parte Virginia, 100 U. S. 339; Neal v. Delaware, 103 U. S. 370, and SSoon Hing v. Crowley, 113 U. S. 703.

Answer 3

See the opinion of the Supreme Court of the United States in Gonzalez v. Trevino, 602 U.S. ___ (2024).

The plaintiff had been arrested for removing a governmental record from a city council meeting. She alleged the arrest was in retaliation for her organizing a petition against a city staff member.

The Supreme Court summarized and clarified the framework for assessing a retaliatory arrest claim in the context of selective prosecution:

• The existence of probable cause does not defeat a plaintiff’s claim if the plaintiff produces “objective evidence that they were arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”
• A claim may be made out even in "circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so."
• To prove the above, a plaintiff may rely on evidence "that no one has ever been arrested for engaging in a certain kind of conduct—especially when the criminal prohibition is longstanding and the conduct at issue is not novel."

Answer 4

It’s impossible to prove a negative. And laws, unlike people, do not enjoy a presumption of innocence. If that requirement is to mean anything, it must mean the law is likely or is in fact, being used to chill free speech. Once it is in fact being used to do so, then either the law or the actions that are being taken must violated the Constitutional restriction.

Otherwise you could write a law saying that murder is by definition breathing, and then implement it selectively.