Trump Assaults First Amendment While Claiming Victimhood
Isa-Lee Wolf is a writer and a non-practicing lawyer with a B.A in sociology.
“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.” (emphasis added)
With Attorney General William Barr now reportedly urging federal prosecutors to consider charging “violent” protestors with sedition, or intent to overthrow the government, the Republican hypocrisy around free speech is fully revealed in plain sight.P President Trump has used federal law enforcement to curb protests and whisk protesters off the streets into unmarked vehicles, all while he bemoans censorship.
Political speech directed at our government is one of the First Amendment’s most sacred rights. Barr and the Trump Administration are jackbooting their way right over it, along with our protected right to petition our government for redress of grievances.
The Supreme Court agrees; under Brandenberg vs. Ohio, even speech that advocates for violence is protected unless the harm is imminent. From The New York Times vs. Sullivan a case that ended “seditious libel,” or prosecution for criticism of the government:
“Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Barr’s directive is but one more disturbing roadside attraction on an extended road trip of Republican First Amendment hypocrisy. Along with a platform of essentially whatever Trumpy wants, Trump gets, the 2020 Republican National Convention adopted a “Resolution Upholding The First Amendment To The Constitution Of The United States Of America In The Response To The Coronavirus Pandemic And The Cancel Culture Movement.” This resolution, whose poorly-punctuated name just rolls off the tongue, asserts, in part:
“Freedom of speech is trampled on daily with the notions of ‘political correctness,’ the plan to eliminate so-called “hate speech,” and the promotion of a ‘cancel culture’ which has grown into erasing of history, encouraging lawlessness, muting citizens, and violating free exchange of ideas, thoughts, and speech;”
Which is immediately contradicted by its resolution on Christopher Columbus:
“That the RNC affirms the need to take a strong position in support of our founding ideals, and in solidarity against anti-Italian and anti-Catholic prejudice, by defending Columbus Day as a federal holiday and urging all Republican candidates to do the same.”
It’s a common theme among Republicans, this idea that the speech they like should be entirely free from criticism, while calling to police the content of speech they don’t like. Take Tiffany Trump’s August 25 address to the RNC. She again repeats the propaganda that counterspeech–the heart of the First–is somehow oppressive. She also took another swipe at the First Amendment by claiming the media “mentally enslave” us, rather chilling from a recent law-school graduate:
Tiffany goes all in on the “media is enslaving people for control and profit” narrative pic.twitter.com/iR26YsKFuk
— Acyn Torabi (@Acyn) August 26, 2020
And herein lies the inherent contradiction of the Right on the concept of free speech: they demand it, demand no consequences from it, which is the truth about “cancel culture,” all while raging against the idea that it might apply to everyone. What does freedom of speech actually mean? On July 27. 2020, Donald Trump tweeted:
“So disgusting to watch Twitter’s so-called ‘Trending’, where sooo many trends are about me, and never a good one. They look for anything they can find, make it as bad as possible, and blow it up, trying to make it trend. Really ridiculous, illegal, and, of course, very unfair!” (emphasis added)
Trump later ranted about bringing “fairness” to “Big Tech,” saying he would deliberately circumvent Congress through the use of Executive Orders. The White House “Rapid Response” account and Kayleigh McEnany extolled his fight against “censorship,” calling the right for corporations to regulate their own businesses a “loophole.” Trump filed a petition with the FEC; as of the date of this writing, Trump has not issued an Executive Order.
The First Amendment applies only to government action. Twitter deleting tweets, putting warnings on tweets, or hiding tweets, has absolutely nothing to do with the First Amendment, even when those tweets belong to the person occupying the White House. People choosing to boycott products, properties, or celebrities in so-called “cancel culture” also has nothing to do with the First Amendment unless the government tries to punish them for doing so.
On the other hand, Trump calling speech “illegal” cuts straight to the heart of the First Amendment. It’s not something to mock, but to eye leerily, as he works his way through its protections, eroding our rights along the way. It looks as though Trump plans to do to speech what he did to the right to protest, which also stems from the First.
Perhaps the most important thing about the First Amendment: free speech does not mean freedom from criticism. It does not mean people can say whatever they want without consequences. In fact, the First Amendment protects our right to counter speech with more speech, whether the right-wing cares to admit it or not. It is why even “hate speech” is protected.
The First Amendment has a number of clauses, each with its own case law history, or jurisprudence. It covers religion, speech, the press, free assembly, and the right to petition the government or protest. Here, we’ll focus on speech.
First Amendment Basics
The government derives from the Constitution itself. What it doesn’t spell out is left to the states or the people under the Tenth Amendment.
In contrast to the Constitution, the Bill of Rights, adopted in 1791, three years after the Constitution was ratified, protects us from the government, and those protections apply to all levels of governance. The federal government cannot take away your right to free speech, for example, with exceptions we’ll get into below, nor can your state or municipal government. That also goes for government employees, public libraries, and public school students. Though students famously don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” schools can place some limits on speech that interrupts the educational process.
The First Amendment also protects state and local governments from punishment in retaliation for speech. Trump’s threat to withhold pandemic funds from states that do not support him would violate the Amendment if he carried it out.
The First Amendment applies only to government action. We, as citizens, have the right to say whatever we want about Trump, for example, without government retribution. We cannot, under the Constitution, be prosecuted for expressing our disdain for him, for making topics about him trend, or even for calling him names.
Free speech does have exceptions and limits. Under the Amendment, there is protected speech and unprotected speech.
What is protected speech?
Political expression is the quintessential form of protected speech. When reviewing whether a government actor violated the right to free political expression, a court must apply “strict scrutiny,” which means the government has to prove that a law or action was narrowly tailored to serve a compelling government interest. The answer to speech we don’t like isn’t to restrict it, as Republican advocate, but more speech. Counterspeech.
Even perceived political expression is covered. In a case decided by the Supreme Court in 2016, Heffernan v. City of Paterson, a police officer picked up a political sign for his mother. A supervisor believed the sign to be his and demoted him for it. He sued, and the lower court ruled that the speech was not protected as it wasn’t actual First Amendment activity, only perceived to be so. The Supreme Court reversed, finding, nonetheless, his government employer prevented him from engaging in protected political speech, even if it wasn’t Heffernan’s intention to do so.
The government cannot regulate the content of speech, and it’s also prohibited from laws and actions deterring First Amendment activity, called the “chilling effect.” In Baggett v. Bullitt, the Court said: “the threat of sanctions may deter . . . almost as potently as the actual application of sanctions.”
That finding seems like it would apply directly to many of Trump’s threats, but that would be up to SCOTUS to decide.
The Amendment doesn’t only cover words, or even language itself; written media, like books written by Trump’s niece, Mary Trump, cartoons, and all kinds of artistic expression, from visual art to music and to dance, all enjoy constitutional protection from government interference.
The “Trump Statue Initiative” in Portland is the First Amendment in action.
A group called the “Trump Statue Initative” has erected this life-sized, living art installation in Portland depicting the arrest of a protester by federal agents. In front, it features a man depicting the President taking a selfie. #Portland #PDXprotests #pdx pic.twitter.com/kf6viiM6Sf
— David Douglas (@DavidDouglasTV) August 3, 2020
Unprotected Speech: Free Speech Exceptions
The government can freely regulate speech that is not protected. Unprotected speech includes:
- Incitement to violence
- Fighting words
- True threats
- Speech in furtherance of criminal conduct
- Child pornography
“I know it when I see it” are perhaps the most iconic words in First Amendment history; obscenity jurisprudence brought us the gem from Supreme Court Justice Potter Stewart in the 1964 case Jacobellis v. Ohio. The Supreme Court found that a French art film “The Lovers,” was, in fact protected, and not “hard-core” pornography–which is not protected, and thus subject to government regulation–after the theater owner was convicted of violating a criminal obscenity statute for screening the film.
While the majority did agree on the reversal of the conviction, they could not agree on a rationale. It wasn’t until Miller v. California in 1973 that SCOTUS developed the three-pronged test for unprotected obscenity:
“1) Whether the average person, applying contemporary community standards, would find that the work as a whole appeals to the prurient interest;
2) Whether the work depicts or describes sexual conduct or excretory functions, as defined by state law, in an offensive way; and
3) Whether the work as a whole lacks serious literary, artistic, political, or scientific value.”
Somewhere about here, you might be wondering about movie ratings, and how those are possible under the First Amendment. There is no paradox or sleight of hand, just the unassailable fact that the Amendment applies only to government action. Movie ratings are not created or assigned by the government, but by the Motion Picture Association’s Classification and Ratings Association, which submits the films to a board of parents to rate.
Similarly, music warnings and labels are entirely voluntary and have nothing to do with government regulation. Same goes for video game ratings.Looking to make a difference? Consider signing one of these sponsored petitions:
Other Forms Of Protected Speech
Some things we don’t think about in terms of constitutional rights are still, nonetheless, protected under the First Amendment. Here are some surprising forms of protected speech.
Though rules regulating commercial speech don’t require strict scrutiny, they do rise to “intermediate scrutiny” meaning the government has an important (as opposed to compelling) interest and that the regulation substantially satisfies that interest.
From Supreme Court case Edenfield v. Fane:
“The commercial market place, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment.”
Laws like those regulating robocalls are allowed under the First Amendment. In Barr v. American Assn. of Political Consultants, Inc., decided in July 2020, the consultants sought to strike the entire regulation that limits the calls, asserting it violated their free speech rights. Instead, the Court only struck an exception that allowed the use of autodialers to collect government debt, as it was, according to the opinion written by Kavanaugh, a form of content-based discrimination.
Some speech isn’t speech at all. The First Amendment also covers “symbolic speech“:
“Symbolic speech consists of nonverbal, nonwritten forms of communication, such as flag burning, wearing arm bands, and burning of draft cards. It is generally protected by the First Amendment unless it causes a specific, direct threat to another individual or public order.”
Burning the American flag, stepping on the American flag, wearing the American flag as a bikini are all protected. So is burning Bibles, much to the possible dismay of the Russian disinformation network who frothed up conservatives with alleged footage of it in Portland.
They say money talks, and what it says is constitutionally protected speech. The infamous case, Citizens United v. Federal Election Commission, despite prior case law supporting campaign finance regulation to prevent corruption, found that campaign finance laws violated the First Amendment. The 2010 decision has profoundly reshaped American politics by allowing unlimited, opaque campaign spending.
From the Brennan Center:
“In the court’s opinion, Justice Anthony Kennedy wrote that limiting ‘independent political spending’ from corporations and other groups violates the First Amendment right to free speech. The justices who voted with the majority assumed that independent spending cannot be corrupt and that the spending would be transparent, but both assumptions have proven to be incorrect.”
But wait, what about obscenity? All pornography that does not meet the Miller test is protected speech. Given the abundance of material available in the 21st century, and changing public sensibilities, the test becomes more flexible than it may originally appear.
“The restrictions that now exist are quite specific and limited. First, there remains a strong presumption in favor of protecting unconsenting adults and children when they are in public. Second, the government can constitutionally prohibit the sale or exhibition to children of material that is obscene for minors, but only if it can do so without significantly interfering with the rights of adults. Third, the government can constitutionally prohibit the production, distribution, and possession of child pornography (that is, sexual images and videos made with real children). Beyond that, though, there are effectively no limits on what consenting adults can see.”
Satire and Parody
Hustler publisher Larry Flynt is the reason satire, like “The Ramp Song” about Trump’s epic battle with a ramp, is free of government interference.
In the 1980s, Jerry Falwell, televangelist and father of unzipped-pants photo subject, Jerry Falwell, Jr., sued Flynt and Hustler for libel and emotional distress after it published an ad depicting Falwell “engaged” in a relationship with his mother in an outhouse. The case made its way to SCOTUS, who, in 1988, found the ad, as parody, was protected and not libel, as no one would believe it to be true. In reversing the lower court’s award of damages for emotional distress, it found that public figures must prove actual malice.
“Respondent would have us find that a State’s interest in protecting public figures from emotional distress is sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. This we decline to do.”
In a face-off between copyright law and the First Amendment, author Alice Randall wrote a parody of Margaret Mitchell’s pro-antebellum Southern opus Gone with the Wind, called The Wind Done Gone, told from the perspective of a slave. Mitchell’s estate sued to halt its publication. Randall’s publisher, Houghton Mifflin, argued it was protected parody.
In 2001, The lower court granted an injunction against publication of the book, but the 11th Circuit reversed, calling the injunction a prior restraint on speech, meaning it preemptively restricted speech. The case never got to the Supreme Court, as the parties settled, with an agreement to call the book “unauthorized parody,” and the slightly befuddling requirement from the Mitchell Estate that Houghton Mifflin donate some of the profits to historically Black Morehouse College.
Anti-women’s health “Health Providers.”
In 2018, the Supreme Court found California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) in the National Institute of Family and Life Advocates v. Becerra violated the First’s prohibition on content-based regulation. The Supreme Court reversed the 9th Circuit as they had not applied a strict scrutiny test to the challenge to the law from “pro-life” so-called clinics.
The law required clinics to disclose that California provided women’s health services, including abortion and birth control, to women who visted the clinics purporting to serve women’s health needs. The clinics also had to disclose whether they were licensed.
The majority found both provisions failed strict scrutiny, as the law was content based, requiring groups opposed to abortion to nonetheless provide information about abortion. It struck the licensing provision, despite precedent on licensing disclosure because: “Unlike the rule in Zauderer, the licensed notice is not limited to ‘purely factual and uncontroversial information about the terms under which . . . services will be available.’”
Content-based restrictions are a no-no under the First Amendment, and that includes abhorrent content like hate speech. In the case of Snyder v. Phelps, where the Westboro Baptist Church protested a funeral, SCOTUS reversed a lower court’s finding of emotional distress, ruling instead that signs contained protected speech:
“The Supreme Court’s holding turned largely on its determination that the church was speaking on ‘matters of public concern’ as opposed to ‘matters of purely private significance.’ The Court explained that ‘[s]peech deals with matters of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community” or when it “is a subject of general interest and of value and concern to the public.”’ Speech on public issues is entitled to special protection under the First Amendment because it serves the ‘the principle that debate on public issues should be uninhibited, robust, and wide-open.’ To determine whether the speech dealt with matters of public concern, the Court examined the ‘content, form, and context’ of the speech. The court noted that none of these factors determines the outcome of the case and that a court must evaluate all the circumstances of the speech, ‘including what was said, where it was said, and how it was said.’”
The Rantt Rundown
The First Amendment applies only to government action. Companies like Twitter are not subject to the First Amendment, but they, like all of us, are protected by it. While the government can place some restrictions on speech, it must prove that the reason for doing so is compelling, and that the restriction is narrowly tailored to fit that compelling need.
The First Amendment not only covers our political speech, but the many ways in which we express ourselves, whether through spoken language, through the arts, or through burning stuff. Trump, with his threats, his attempts to intimidate, and his labeling some speech as “illegal” is chipping away at this fundamental protection, and we must be vigilant against it. Republicans, as is evident from their 2020 Resolutions, also try to hide free speech restrictions under the false flag of defending it.
When First Amendment protections remain broad, we will all find ourselves disappointed at one point or another, as there is always speech we find objectionable, and just like the speech we like, the government cannot regulate it. But today’s acceptable speech is tomorrow’s forbidden language, and, as always, the answer to speech we don’t like is more speech. Often it’s the people advocating for “free speech” who dislike that part the most; at the heart, that’s what lies beneath the cries against “cancel culture.”
But within that wide, wide, First Amendment berth, companies can harbor their ships at any point they like. Social media companies can ban hate speech and trolling. The Motion Picture Association can create a voluntary system of ratings. We can decide among ourselves what speech is acceptable to us and take a stand, and the First Amendment can’t do a thing about it.