As did Hitler’s Brown Shirts, so have other socialist/communist thugs and roughnecks throughout recent history been the ones to physically disrupt the gatherings of their political opponents. This is what happened yesterday in Chicago at the planned Trump rally (here), and appears to be the start of this election season’s violent phase – expect more of such thuggery and violation of First Amendment rights from the Left.
Apparently this junction is the result of the Democrats finally realizing that Trump could beat anyone they nominate whether it be Hillary the Unindicted, Bernie the Communist (forget that ‘socialist’ crap), or even Foot-in-the-Mouth Joe. Were it not so, no one would care. The Dems’ big money is beginning to fund anti-Trump activities and front their far-left ideologues which tactics bare their true assessment of what’s likely for this fall unless they can physically intervene, and, of course, have the lamestream blame it on the Right.
The astute reader will note and mark the Left/Right asymmetry in the coming travails. The only ones who will remain clueless about what’s going on are the gruberized local lefties here and elsewhere. They’ll continue singing loudly some version of The Internationale for as long as it takes. Trump should now cool his rhetoric, to which he has every right, and continue morphing into maximum presidential mode from here on. Thoughts?
In its explicit reading our Constitution’s FA states - 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.
Longtime readers will have encountered my own essay (here) on rights and privileges first published some years back and much debated since then. In sum there I argue that all rights are granted by government (which in a republican democracy is the collective that enforces our social contract in the large). And to the extent that a government does not enforce that or any right – either uniformly or selectively – operationally that right simply ceases to exist.
The contention is that the FA is “a limit on the power of the government (big or small) to restrict (an individual), not some right (for an individual) to speak and be heard.” The interpretation of the FA over the last two centuries has been anything but so limited. When we look at how the government has enforced the ability of individuals to communicate and/or speak freely in the public forum, we see that – due to the precise wording of the FA – they have mostly used other laws the effects of which become proximal to the occasion during which individuals hinder/stop free speech of other individuals.
When individuals attempt to violate FA rights, they almost always do that through some physical action that also and most clearly violates some other law intended to enforce privacy, maintain the peace, security in one’s person, prohibit trespassing, threaten violence, … . It is then that government, when it selectively chooses, steps in and prevents such actions motivated by and proximal to the intent to deny free speech and/or FA rights. That has been the clear method of enforcing the right to free speech in our Republic. To argue that this technically is not the government enforcing the right to free speech is to my mind a specious twist of what has actually been happening in our society. More importantly, it flies in the face of what we Americans have been taught to expect of government enforcing the Constitution – in short, such methods of guaranteeing the FA rights has made America what it is, and what continues to contribute to public peace.
As the definition of ‘speech’ has expanded in the latter half of the 20th century, a rich body of FA case law reaching all the way to SCOTUS has come on the books. The currently celebrated Citizens United, which among other things forces privately owned media outlets to accept political advertising from private sources which is contrary to the ideology of its ownership, and thereby goes on to defend individuals’ and corporate funding of such messaging as an expression of free speech, is a case in point
Not being a student of constitutional law, I am unaware of any other parts of our Constitution than the FA that provide an umbrella mandate for the government’s guarantee of free speech. There may be and no doubt are other provisions in that document that have been invoked invite/impel government to also enforce free speech rights. If, how, and when the various arms of government continue to guarantee these rights, this election season may become the most important civics lesson of our lifetime.
[16mar16 update] My interpretation of First Amendment’s support of private free speech continues to draw ever more strident opposition in the comment stream, opposition that has now ascended to ex cathedra levels. I have also been advised civilly yet firmly to read up on the amendment, my previous scribblings apparently giving no evidence of that. And all along I thought that I was a student of the pragmatic school of interpreting rights and privileges, and traveled in the good company of outfits like Heritage, Cato, and Founders like Madison. The latter wrote to his fellow legislators – “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”
From my ‘Rights and Privileges’ - A RIGHT is a codified permission to do, be, or have that is granted by an agency to its member individuals/agencies who have formed and maintain the granting agency to carry out their collective will in a manner that requires the agency to expend all necessary resources to insure that such granted rights are enjoyed uniformly by all of its franchised members.
The method by which governments (‘granting agencies’) convey and guarantee rights is by forcefully and through force of law act to prevent any third parties from depriving or abridging a person’s ability to do, be, or have what is permitted, and also constraining its own actions in the same manner and to the same degree. Pertaining to rights, anything beyond that is perfidious pabulum. For example, no matter how strongly I abhor Nazi ideology, I cannot deprive or abridge present day Nazis from proselytizing, marching, waving flags, etc in the public fora any more than I can do that to a 4-H club or the parading Shriners. Were I to attempt such interdiction, some law enforcement agency of government would swing into action to thwart me, and depending how I resist, would even kill me to protect such expressions of free speech.
This interpretation has a long history in our country, and is especially relevant in the last decades as “today's free speech and free press law is not much influenced by original meaning. It is mostly the creature of the experience and thinking of the twentieth century”. Within this thought and practice, there remains “a small set of rather narrow exceptions to free speech protection” among which we can count incitement, false statements of facts (knowing lies), obscenity, child pornography, threats, fighting words, and words “owned by others” (intellectual property).
For Heritage, UCLA law professor Eugene Volokh also advises us that “free speech/press law is sometimes called the tax code of constitutional law. (Its discussion) suggests how complex the law is, but while some of the complexity may be needless, much of it is inevitable. Communication is in many ways the most complicated of human activities, and no simple rule can properly deal with all the different kinds of harms that it can cause—or all the different kinds of harms that restricting communication can cause.”
I hope that I’ve made clear my own humble perspective on the matter; I do tend to be the pragmatist, especially when it comes to viewing the behavior of collectives like government and in the professed practice of technology – avoid quo vadis, just watch their feet. From my own studies, anyone speaking with certitude on what the Constitution and case law summarily conclude about free speech is definitely riding the high horse of hubris. As with preventable global warming, the debate is far from over. So by all means, let the debate continue.
[20mar16 update] Some random observations about the ever widening differences between the people of the Left and Right. We now hear that more leftwing thugs in Arizona have shut down a highway leading to a Trump campaign venue, and have also had to be removed from preventing supporters entry into the venue. Since Bolshevik times denying or disrupting the free speech of the opposition has been the hallmark, or litmus test if you will, of the collectivists under whatever banner they gather. It’s the indelible proof that the Left’s ideas are bankrupt, and cannot contend on their own in the marketplace of ideas even when the audiences have been dumbed down.