While the president’s actions are unprecedented, the law here is established. A 2015 judicial opinion by the Seventh Circuit’s (now-retired) Judge Richard Posner makes clear that “a public official who tries to shut down an avenue of expression of ideas and opinions through actual or threatened imposition of government power or sanction is violating the First Amendment.” Similarly, a 2003 Second Circuit opinion found that the First Amendment was violated when an official’s statements “can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.’”
President Trump has engaged repeatedly in precisely the kind of behavior those courts have found unlawful.
After repeatedly attacking CNN’s news coverage as “fake,” “garbage” and “terrible” and personally pledging to block a proposed merger of its parent company, Time Warner, with AT&T, the Trump administration opposed the deal, a vertical merger that would not normally attract antitrust scrutiny. The government denied that retaliation was at work and the court did not assess that claim. But the judge rejected the government’s challenge and approved the merger with no conditions imposed, citing the government’s failure to adduce “economic evidence of any kind” and reliance on “bare conjecture” as the basis for its case.