The Supreme Court’s decision to grant presidents immunity from prosecution for criminal acts committed while in office not only gives Donald Trump a free pass for his past crimes, but sets a dangerous precedent for all future presidents.

Before Trump, no one had even argued that presidents are absolutely immune from criminal liability after they leave office. Indeed, every president – including Trump himself – assumed the opposite. In his impeachment trial Trump’s lawyers argued against impeachment by conceding that an acquittal would not be the end of potential accountability, because he could be criminally prosecuted after he left office. That concession was in line with all prior presidents’ acceptance that the United States is a place where all citizens, including the president, are equal under the law.

No more. In Trump v. United States, the court’s Republican-appointed justices — including the three Trump appointees — announced a brand new constitutional immunity from criminal liability for presidents’ “official acts,” or anything a president may do using the powers of the office. The court’s decision ensures that future presidents — including Trump himself should he win reelection in November — will know that they can escape criminal accountability for blatantly criminal acts, no matter how corrupt. Even acts that strike at the heart of our democracy, like resisting the peaceful transition of power, could not be prosecuted.

The court tried to cast its opinion as restrained, emphasizing that it rejected former President Trump’s most extreme claim: that presidents can only be prosecuted for crimes for which they had already been impeached. But as Justice Sonia Sotomayor pointed out in a powerful dissent, there is nothing measured about the opinion or its consequences. The court grants absolute immunity against criminal prosecution for any of a president’s “core” executive acts, which the court went on to define as including any use of the Justice Department—an ostensibly and traditionally independent agency–for criminal investigation. And it grants “presumptive” immunity for any acts within the “outer perimeter of his official responsibility.” While the latter immunity is in theory rebuttable, the court set such a high standard for rebutting it that it may be effectively absolute as well.

The court did hold that a president can be prosecuted for unofficial, purely private acts, a proposition even Trump did not dispute. But the court’s conception of official acts is strikingly broad. Worse, the court also held that official acts cannot even be used as evidence to support a crime committed in the president’s personal capacity, making it even more difficult for prosecutors to indict a president even for purely private criminal acts. The court purports to leave much of the work of hashing out the details in Trump’s case to lower courts. But the standards it announced will make holding any president criminally accountable extraordinarily difficult.

The immediate consequence of the decision is that it sends the current federal prosecution of former President Trump for interfering in the 2020 election into disarray. True, that prosecution is not yet dead. Formally, the Supreme Court only conclusively disqualified one set of allegations — those involving Trump’s communications to the Department of Justice — from the indictment. But as a practical matter, the fact-laden inquiry in which the district court must now engage, and any appeals thereto, will take many months if not years to resolve — all before any trial can commence. In addition, President Trump has already moved to wipe out his criminal conviction in New York State.

As Justice Robert Jackson warned in his dissent in the notorious Korematsu case upholding the federal government’s internment of Japanese Americans, the court’s opinion sits like a loaded weapon for future presidents, who can now avoid criminal liability for all manner of criminal ends so long as they do so through arguably “official” authorities.

As Justice Sotomayor wrote in her dissent:

The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

If former President Trump manages to win November’s election, it does not take much imagination to see just what kinds of retribution, or worse, the court has now greenlighted him to pursue against his political enemies.

But it’s important to remember that while this decision removes the possibility of criminal accountability, other forms of accountability remain. As long as this misguided decision remains the law, we must fight presidential abuses of power in other ways. In particular, we must resist encroachments on our rights and liberties, criminal or otherwise, before they happen — through civil lawsuits, the ballot box, and in the halls of power across the country. During the Trump administration, we filed more than 400 legal actions to defend constitutional rights and liberties from his administration’s unprecedented assaults — and often succeeded in halting illegal acts.

If he is elected again, we will be ready to do the same. Already our teams have drafted our response to the civil liberties and civil rights abuses outlined in Trump’s transition project, and we promise to challenge any acts – official or not – that violate the Constitution.

The threat of criminal prosecution is an important incentive to keep presidents from breaking the law. It’s largely gone now thanks to the Supreme Court. But it is only one form of accountability and constraint — one that, we should remember, had never been resorted to in the past. As they always have done, the courts can still enjoin illegal presidential behavior. Congress has important powers of oversight, the purse, and lawmaking that can check even a rogue president. And perhaps most important, by voting like our rights depend on it, we can all help ensure that future presidents will leave the court’s loaded gun in its holster.

pDear College and University Presidents:/p pWe write in response to the recent protests that have spread across our nation’s university and college campuses, and the disturbing arrests that have followed. We understand that as leaders of your campus communities, it can be extraordinarily difficult to navigate the pressures you face from politicians, donors, and faculty and students alike. You also have legal obligations to combat discrimination and a responsibility to maintain order. But as you fashion responses to the activism of your students (and faculty and staff), it is essential that you not sacrifice principles of academic freedom and free speech that are core to the educational mission of your respected institution./p pThe ACLU a href=https://www.aclu.org/news/free-speech/the-streets-belong-to-the-people-always-have-always-willhelped/a establish the right to protest as a central pillar of the First Amendment. We have defended those principles for more than a century. The a href=https://www.aclu.org/documents/united-states-bill-rights-first-10-amendments-constitutionFirst Amendment/a compels public universities and colleges to respect free speech rights. And while the Constitution does not apply directly to private institutions, academic freedom and free inquiry require that similar principles guide private universities. We approach this moment with appreciation for the challenges you confront. In the spirit of offering constructive solutions for a way forward, we offer five basic guardrails to ensure freedom of speech and academic freedom while protecting against discriminatory harassment and disruptive conduct./p div class=wp-heading mb-8 h2 id= class=wp-heading-h2 with-standardSchools must not single out particular viewpoints for censorship, discipline, or disproportionate punishment/h2 /div piFirst/i, university administrators must not single out particular viewpoints — however offensive they may be to some members of the community — for censorship, discipline, or disproportionate punishment. Viewpoint neutrality is essential. Harassment directed at individuals because of their race, ethnicity, or religion is not, of course, permissible. But general calls for a Palestinian state “from the river to the sea,” or defenses of Israel’s assault on Gaza, even if many listeners find these messages deeply offensive, cannot be prohibited or punished by a university that respects free speech principles./p pThese protections extend to both students and faculty, and to speech that supports either side of the conflict. Outside the classroom, including on social media, students and professors must be free to express even the most controversial political opinions without fear of discipline or censure. Inside the classroom, speech can be and always has been subject to more restrictive rules to ensure civil dialogue and a robust learning environment. But such rules have no place in a public forum like a campus green. Preserving physical safety on campuses is paramount; but “safety” from ideas or views that one finds offensive is anathema to the very enterprise of the university./p div class=wp-heading mb-8 h2 id= class=wp-heading-h2 with-standardSchools must protect students from discriminatory harassment and violence/h2 /div piSecond/i, both public and private universities are bound by civil rights laws that guarantee all students equal access to education, including Title VI of the Civil Rights Act. This means that schools can, and indeed must, protect students from discriminatory harassment on the basis of race or national origin, which has been a href=https://www2.ed.gov/about/offices/list/ocr/sharedancestry.htmlinterpreted/a to include discrimination on the basis of “shared ancestry or ethnic characteristics,” or “citizenship or residency in a country with a dominant religion or distinct religious identity.”/p pSo, while offensive and even racist speech is constitutionally protected, shouting an epithet at a particular student or pinning an offensive sign to their dorm room door can constitute impermissible harassment, not free speech. Antisemitic or anti-Palestinian speech targeted at individuals because of their ethnicity or national origin constitutes invidious discrimination, and cannot be tolerated. Physically intimidating students by blocking their movements or pursuing them aggressively is unprotected iconduct/i, not protected ispeech/i. It should go without saying that violence is never an acceptable protest tactic./p pSpeech that is inot/i targeted at an individual or individuals because of their ethnicity or national origin but merely expresses impassioned views about Israel or Palestine is not discrimination and should be protected. The only exception for such untargeted speech is where it is so severe or pervasive that it denies students equal access to an education — an extremely demanding standard that has almost never been met by pure speech. One can criticize Israel’s actions, even in vituperative terms, without being antisemitic. And by the same token, one can support Israel’s actions in Gaza and condemn Hamas without being anti-Muslim. Administrators must resist the tendency to equate criticism with discrimination. Speech condoning violence can be condemned, to be sure. But it cannot be the basis for punishment, without more./p div class=wp-heading mb-8 h2 id= class=wp-heading-h2 with-standardSchools can announce and enforce reasonable content-neutral protest policies but they must leave ample room for students to express themselves/h2 /div piThird/i, universities can announce and enforce reasonable time, place, or manner restrictions on protest activity to ensure that essential college functions can continue. Such restrictions must be content neutral, meaning that they do not depend on the substance of what is being communicated, but rather where, when, or how it is being communicated. Protests can be limited to certain areas of campus and certain times of the day, for example. These policies must, however, leave ample room for students to speak to and to be heard by other members of the community. And the rules must not only be content neutral on their face; they must also be applied in a content-neutral manner. If a university has routinely tolerated violations of its rules, and suddenly enforces them harshly in a specific context, singling out particular views for punishment, the fact that the policy is formally neutral on its face does not make viewpoint-based enforcement permissible./p div class=wp-heading mb-8 h2 id= class=wp-heading-h2 with-standardSchools must recognize that armed police on campus can endanger students and are a measure of last resort/h2 /div piFourth/i, when enforcement of content-neutral rules may be warranted, college administrators should involve police only as a last resort, after all other efforts have been exhausted. Inviting armed police into a campus protest environment, even a volatile one, can create unacceptable risks for all students and staff. University officials must also be cognizant of the history of law enforcement using inappropriate and excessive force on communities of color, including Black, Brown, and immigrant students. Moreover, arresting peaceful protestors is also likely to escalate, not calm, the tensions on campus — as events of the past week have made abundantly clear./p div class=wp-heading mb-8 h2 id= class=wp-heading-h2 with-standardSchools must resist the pressures placed on them by politicians seeking to exploit campus tensions/h2 /div piFinally/i, campus leaders must resist the pressures placed on them by politicians seeking to exploit campus tensions to advance their own notoriety or partisan agendas. Recent congressional hearings have featured disgraceful attacks by members of Congress on academic freedom and freedom of speech. Universities must stand up to such intimidation, and defend the principles of academic freedom so essential to their integrity and mission./p pThe Supreme Court has forcefully a href=https://supreme.justia.com/cases/federal/us/408/169/rejected/a the premise that, “because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.”/p p“Quite to the contrary,” the court stated, “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” In keeping with these values, we urge you to resist the temptation to silence students or faculty members because powerful voices deem their views offensive. Instead, we urge you to defend the university’s core mission of encouraging debate, fostering dissent, and preparing the future leaders of our pluralistic society to tolerate even profound differences of opinion./p

Can a bakery that objects to marriage equality refuse to sell a cake to a gay couple for their wedding? This question, or some variant thereof, has occupied courts even before marriages for same-sex couples were legally recognized. In June 2023, in 303 Creative v. Elenis, the Supreme Court addressed this question in a case asking whether a wedding website design business could refuse to design websites for weddings of same-sex couples. The court ruled for the business. But properly understood, the decision does not license discrimination; it merely recognizes that where a business will not provide a particular product or service to anyone, it has the right to refuse it to a gay couple. That exception should not apply to most applications of anti-discrimination laws, which require only equal treatment, and do not require businesses to provide any particular service or product. As I explain in more detail in this Yale Law Journal article and as we argue in this model brief, 303 Creative does not create a First Amendment right to discriminate.

Under Colorado’s public accommodations law, businesses that choose to serve the public at large cannot turn people away because of their race, sex, religion, sexual orientation or other protected characteristics. 303 Creative claimed that because its service is expressive and its owner objects to same-sex marriage, it can’t be required to provide website design services for same-sex weddings.

In a 6-3 decision, the court ruled for the business, concluding that Colorado’s application of its public accommodations law violated the designer’s First Amendment rights. In our view, the decision was wrong. We submitted a friend-of-the-court brief arguing that the Constitution did not give the business a right to refuse to comply with Colorado’s anti-discrimination law. But it’s important to understand the limits of the decision.

The case was brought by 303 Creative, a website design business, and its owner, Lorie Smith. Smith argued that Colorado’s law violated her First Amendment rights by compelling her, if she opened a wedding website design business, to serve both gay and heterosexual couples seeking to marry. The business had never actually designed a wedding website. Still, Smith brought the case before doing so, arguing that she was deterred from pursuing the business out of fear that Colorado’s public accommodations law would require her to create websites celebrating marriages that she opposed.

Because the case was brought before any actual application of the law, it was unclear what the designer would or wouldn’t do, or how the law would apply to her. As a result, the court’s opinions treat the case as if it presented two very different questions.

According to the majority opinion, the case involved a business owner unwilling to design for anyone a website whose content contravened her beliefs by expressly celebrating marriages of same-sex couples. It did not involve a business that refused services to customers based on their sexual orientation. Rather, Smith objected to the content of the message the state was compelling, not the identity of the customers. And equally significantly, the majority viewed Colorado’s purpose in applying its public accommodations law in such circumstances—where the business did not object to the identity of the customers but to the message requested—to be in suppressing disfavored ideas about marriage and compelling expression of the state’s favored viewpoint. In this particular application, the majority concluded, the business objected only to the message, and the state sought to enforce the law to compel a message–not to prohibit discriminatory sales on the basis of identity.

The dissenting opinions saw the case entirely differently. It viewed it as involving a website designer who objected to making any wedding website for a same-sex couple, regardless of its content. In its view, 303 Creative would refuse to make a website for a same-sex couple even if the website was identical to that of a different-sex couple. In its view, then, the designer sought a right to discriminate not based on the content of any particular message, but based on the customer’s sexual orientation. It correctly argued that the law has long been settled that the First Amendment does not permit businesses, even those whose services are expressive, to discriminate based on identity.

In essence, the majority and the dissent decided different cases. Indeed, when the dissent accused the majority of permitting businesses to discriminate on the basis of identity, the majority strongly rejected that conclusion, saying “We do no such thing.”

One way of understanding the difference is to imagine two paradigm cases. A t-shirt manufacturer that objects to making a t-shirt that says “Support Gay Marriage” has the right to refuse to make that t-shirt for a gay customer where his objection is to the message, not the identity of the customer. If the t-shirt manufacturer would not make a shirt with those words for anyone, it need not make one for a particular customer because they are gay. But at the same time, the t-shirt manufacturer could not refuse to sell a shirt saying “Love Marriage” to a customer because he was gay or sought to wear it to celebrate his marriage. If the business sells such shirts to others, it has to sell it to all. Nor could the t-shirt designer put up a sign saying “We Don’t Serve Gays.” In short, the decision permits a denial of service based on the message requested, but not based on who the product is for.

Understood in this light, the decision should have minimal impact on the enforcement of public accommodations and anti-discrimination laws. It recognizes a right to refuse service only where a business objects to expressing a particular message for anyone, not where it objects to serving certain customers because of their identity.

Because that is not the situation in the vast majority of instances in which antidiscrimination laws are applied, the decision leaves standing what the court previously described as the “general rule”—namely, that religious and philosophical objections “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

In short, the decision in 303 Creative does not mean that a caterer, florist, or baker can refuse to provide food, flowers, or a cake for a wedding merely because the participants are of the same sex and the vendor objects to the implicit message providing those services sends. Instead, it is only when a public accommodations law compels speech that a business owner objects to providing for anyone—and does so in order to excise disfavored ideas, that it violates the First Amendment.