“To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint.” Int’l Refugee Assistance Project, et al. v. Trump, et al., No. 17-1351 (4th Cir. May 31, 2017), slip op. 68, Pet. App. A, 62a (emphasis added).
The parties have not focused on the Fourth Circuit’s new assertion that the chilling of certain disfavored speech would be a “welcome restraint.” The “restraint” the majority below would “welcome” is self-censorship.
Within the second Question Presented is the substantive question of whether Section 2(c) of the Executive Order may be subjected to Establishment Clause scrutiny based upon campaign “promises” by candidate Donald Trump, or whether the constitutionality of that order should instead rise or fall based upon evidence less likely to chill political speech and association. Indeed, one member of the Fourth Circuit majority wrote separately, in part, to note her view that the court’s review of the campaign statements was not necessary and that the Order could be found unconstitutional without considering those statements.
Although this case concerns an Establishment Clause dispute, the Fourth Circuit majority quotation above poses important questions concerning free speech, content, and speakers. Yet, rather than maintain the courts’ traditional respect for vigorous campaign speech, the lower court here “welcome[d] restraint” on “campaign promises” of a particular type and by a particular speaker.
Whether or not the majority below thought their “welcome restraint” analysis was mere dicta, this Court has never held or suggested that the Establishment Clause can restrain campaign speech. Nor can the “welcome restraint” formulation be limited, as the majority below suggests, to only “highly unique” situations. Once confirmed (or left unrestrained by this Court’s review) the number of applications of “welcome restraint” analysis of campaign speech on religious or other grounds will likely multiply.
Center for Competitive Politics and Public Policy Legal Institute Amicus Brief on the Merits, United States Supreme Court (August 3, 2017)
Center for Competitive Politics and Public Policy Legal Institute Amicus Brief on Petition for Writ of Certiorari, United States Supreme Court (June 9, 2017)