Trump Resistance at FEC Misstates First Amendment Law

The @alt_fec Twitter account is run by self-proclaimed FEC employees who are experts in campaign finance law.  But they managed to mis-state First Amendment law three times in one Tweet attacking the Institute for Free Speech and requesting IFS' "views on the First Amendment implications of a letter from a private attorney to a private publisher concerning Fire and Fury: Inside the Trump White House."  IFS accepted the invitation to analyze the letter under relevant First Amendment law (footnotes omitted):

The author behind @alt_fec suggests that this is our “chance to denounce the President’s attempted prior restraint of a book – just about the worst [First Amendment] violation there is.” . . . 

First, the letter protesting Fire and Fury is from Donald Trump’s private attorney. Donald Trump, the man, is different from Donald Trump the President. The letter isn’t an attempt by the President to prevent publication using the powers of his office. It’s a warning from a private party that he will sue for libel if the book is published. 

Second, this isn’t a prior restraint. By definition, a prior restraint involves a legal prohibition on publishing something. Threatening to sue after publication isn’t a prior restraint. 

Third, there is no First Amendment violation when a private party sends such a letter. The First Amendment prohibits action by the government, not private individuals.

IFS then describes how proving libel against public figures requires a showing of falsehoods printed with "actual malice," a very high bar established by N.Y. Times Co. v. Sullivan.  This is the actual First Amendment question at issue here, not the prior restraint question identified by @alt_fec:

Such errors are among the reasons why @alt_fec has little credibility on First Amendment matters, and why we do not intend to respond to future attempts to bait us with patently ill-informed, partisan broadsides. But this particular tweet provides a teachable moment which, as a nonpartisan organization dedicated to a robust (and accurate) view of the First Amendment, we couldn’t let pass.

Yet, the FEC resistance movement is unperturbed by misstatements of the law and has since reiterated their initial, faulty analysis of the letter.  This is just a microcosm of the tactics of the movement to resist President Trump: partisan attacks, little respect for facts or law, and manufactured outrage.