[mikece]

No. The 1st Amendment is a restriction on the Legislative branch: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Congress passed no laws in this regard. Whether or not this was illegal activity on the part of the Executive Branch is another question entirely -- and a good one.

[bko]

The 1st amendment has long been interpreted to apply to the entire federal government.

> The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. It prohibits any laws that establish a national religion, impede the free exercise of religion, abridge the freedom of speech, infringe upon the freedom of the press, interfere with the right to peaceably assemble, or prohibit citizens from petitioning for a governmental redress of grievances. It was adopted into the Bill of Rights in 1791. The Supreme Court interprets the extent of the protection afforded to these rights. The First Amendment has been interpreted by the Court as applying to the entire federal government even though it is only expressly applicable to Congress. Furthermore, the Court has interpreted the Due Process Clause of the Fourteenth Amendment as protecting the rights in the First Amendment from interference by state governments.

https://www.law.cornell.edu/wex/first_amendment

[zerocrates]

Despite the phrasing being "Congress shall make no law," the First Amendment absolutely applies to the executive.

The mainstream test just looks for a "state actor" but even if you want to go textualist, things probably break down like this: if a law empowers the executive to do an act that violates the First Amendment, the law itself is a violation of the First Amendment. If no law empowers the executive to do the action at issue, then the action is illegal by virtue of being in excess of the executive's authority.

[nathanaldensr]

Thank you for this excellent explanation.

[zerocrates]

Just to further clarify, by "mainstream" I meant "the actual test courts use." The "textualist" version is more something to write a law review article about, a theory of how you might get to roughly the same place we are in reality while giving weight to the word "Congress."

Take the state actor doctrine in combination with the fact that the First Amendment is incorporated against the states, and you get the reality that it even applies to, for example, state colleges and universities disciplining students and teachers, despite them not being "Congress," a "law," or even an agent of the federal government at all.

[jtc331]

Going down this technical path doesn’t aid your case: it destroys your case.

This is because the Constitution only authorizes Congress to make any laws in the first place, so only Congress could be guilty of making a law impacting speech. Taking all of the document in the narrow sense you’re taking it would mean the executive branch couldn’t limit speech either because they couldn’t do 99.9% of the things they do today in the first place.

[Dig1t]

I'm not a lawyer, I don't know much about the technicalities of these things.

But by this reasoning it sounds like the president could just create an executive order limiting free speech and that would be just fine? Is the president really aloud to create an executive order saying "anyone with red hair is no longer aloud to speak in public" (obviously silly example)?

[mikece]

The Executive executes the law: they don't make it nor do they stand in judgement of it (there are separate branches for those tasks).

[cabaalis]

It's a loophole of practicality that is often exploited by executive branch regardless of political party.

Initiate a policy or order, mitigating the immediate damage. Then, days, months or years later, a court will decide you didn't have that power and will reverse it. But the threat or problem was already dealt with and there are no repurcussions except political capital spent.

[shagie]

Executive orders impact how the executive branch of the government acts.

They are instructions from the head of the executive branch (be it President or a state's governor) for an agency in the executive branch to do a certain thing.

For example: Executive Order 14087 of October 14, 2022 https://www.federalregister.gov/documents/2022/10/19/2022-22...

> HHS Actions. In furtherance of the policy set forth in section 1 of this order, the Secretary shall, consistent with the criteria set out in 42 U.S.C. 1315a(b)(2), consider whether to select for testing by the Innovation Center new health care payment and delivery models that would lower drug costs and promote access to innovative drug therapies for beneficiaries enrolled in the Medicare and Medicaid programs, including models that may lead to lower cost-sharing for commonly used drugs and support value-based payment that promotes high-quality care. The Secretary shall, not later than 90 days after the date of this order, submit a report to the Assistant to the President for Domestic Policy enumerating and describing any models that the Secretary has selected. The report shall also include the Secretary's plan and timeline to test any such models. Following the submission of the report, the Secretary shall take appropriate actions to test any health care payment and delivery models discussed in the report.

This directs the Department of Health and Human Services (under the executive branch) to do certain things.

---

https://trumpwhitehouse.archives.gov/presidential-actions/ex...

> Sec. 2. Policy. It is the policy of the executive branch to:

> (a) secure the southern border of the United States through the immediate construction of a physical wall on the southern border, monitored and supported by adequate personnel so as to prevent illegal immigration, drug and human trafficking, and acts of terrorism;

> ...

> (d) Except as otherwise noted, “the Secretary” shall refer to the Secretary of Homeland Security.

> Sec. 4. Physical Security of the Southern Border of the United States. The Secretary shall immediately take the following steps to obtain complete operational control, as determined by the Secretary, of the southern border:

Note again, the Department of Homeland Security is under the executive branch.

---

And so, the "could you create an executive order ordering {department} to arrest someone with red hair speaking in public?" The answer is "no" because the ability to arrest someone is under the Judicial branch - not the executive branch.

Secondly, you will note that all of the executive orders are citing the law under which the president (or governor) is given that authority from congress. To arrest a red head for speaking congress would need to have a law (First Amendment!) that allows the executive branch to silence someone.

---

I will also point out gag orders which are, well, fairly straight forward censorship. Except that the gag order is from the judicial branch - not the legislative branch.

https://law.yale.edu/mfia/case-disclosed/when-silence-isnt-g...

[iambateman]

This is basically just wrong.

The executive branch can violate the first amendment…

[Karunamon]

I don't think it's quite that simple. For instance, the establishment of religion clause has been read to deny public entities the ability to put up Christmas displays, despite no "laws" being passed to facilitate them.

The government "asking" a private entity to take some action is inherently coercive due to the power imbalance.