Free Speech And The Judiciary


Donald Trump has been ridiculed by some because of his statements that a Mexican-American federal judge was not fair to him in his Trump University case because of the judge’s ethnicity. Whether he can show that the judge was deliberately wrong on the law because of his ethnicity is dubious at best. But there is no doubt that Trump has the right to state his criticism, and then as a political candidate, have his views subjected to public opinion.

While Trump’s views may be no better than those among judges in the South who upheld anti-miscegenation and other Jim Crow laws or all white juries there who acquitted murderers for their killings of innocent African Americans or civil rights workers, he nonetheless has the right to say what he has. Just as the ACLU fought for the right of Nazis to demonstrate in Skokie, IL, 30 years ago and for the KKK to hold a rally in lower Manhattan later attended by just three of its members, so it is that whether Trump’s polarizing views, which have brought unprecedented violence into the Presidential campaign, will carry the day for him. To be sure, the test for Trump, his Republican Party and the American electorate, will be whether he can win the general election in light of views that many have characterized as hateful and racist. A businessman’s fight to preserve the integrity of his so-called university blends into his campaign for the Presidency because the parties to that litigation and the media have brought it there. The big question is whether the American public will elect Donald Trump despite his rhetoric. Are his substantive views on the economy or trade for example so compelling that his rhetoric in other respects should be ignored?

As it is right now, Trump may ask for the judge’s discretionary recusal for which he will find that the judge himself will rule on that application and for which there is no basis in law. If he believes that the judge has violated the Canons of Judicial Ethics he can file a complaint against him. He will once again find that that application has no merit and that for making these applications he may be subject to sanctions for frivolous conduct.

If he feels that the judge has acted ultra vires, or without jurisdiction, he can sue the judge and then be subject to dismissal of those claims, costs and sanctions. But perhaps he does not care because he never settles and he is a billionaire. At some point his lawyers should care because they may be subjecting themselves to disciplinary action. At some point the American public must decide the overall merits or demerits of Trump’s views—the good, the bad and the truly ugly.

Leave a Reply