Civil Rights

Free speech is a right, not a political weapon

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The media have been awash lately in articles about the danger President-elect Donald Trump poses to free speech. Critics have pointed to his threat to “open up” the libel laws so he can sue the media. They’ve noted his sustained criticism of The Washington Post, The New York Times and CNN for being “unfair” to him and allegedly “inciting” protests against him. They’ve mentioned his promise to pay the legal fees of those who were arrested for attacking protesters at his rallies. 

And, of course, as if to confirm that the criticisms are all well placed, Trump recently tweeted his support for criminalizing flag burning.

So, yes, Trump poses a serious threat to free speech. He clearly doesn’t view it as a right that protects speakers regardless of their views. He sees the media — part of whose job is to scrutinize politicians who wield enormous power over our lives — as an enemy to be tamed, cajoled or intimidated. He portrays almost anyone who criticizes him as a pawn of his political enemies. Whether Trump is opposing free speech outright or trying to bully speakers, he is no friend of free speech.

{mosads}Unfortunately, Trump is not alone among politicians in this regard. While his contempt for free speech may be more brazen, in substance he has not said or supported anything that other politicians haven’t been advocating for years. That’s not to minimize the threat he poses, but to point out that Trump is cashing in on a pattern of contempt for free speech that has been developing for over a decade.

To see that pattern, start with Trump’s threats to silence those with whom he disagrees. That attitude is evident from his support for criminalizing flag burning. Whatever you think of burning flags, it is a form of expression that Trump and his supporters want to ban because of what it conveys: hatred for America. That’s about as clear an attack on the right to free speech as one can imagine. 

But is Trump’s urge to censor this form of speech really different from Hillary Clinton’s desire to ban the political speech at issue in Citizens United? 

The case, which upheld the rights of corporations to speak during elections, involved a law that prevented a nonprofit from distributing a film that criticized Clinton the last time she ran for president. During her campaign, she promised repeatedly to appoint Supreme Court justices who would overturn the case, calling the film it protected “a right-wing attack on me and my campaign.”

Campaign finance laws are not supposed to be used to silence speech that politicians don’t like. At least that’s the theory. In practice, though, laws are inevitably used that way, and their supporters often see that as a virtue.

During the floor debates for McCain-Feingold, the law at issue in Citizens United, many politicians, Sen. John McCain (R-Ariz., included, championed the law because it would prevent groups from funding negative political ads against them. After Citizens United was decided, Congress considered the Disclose Act, which would have forced many organizations to disclose their donors. In praising the law, Sen. Charles Schumer (D-N.Y.) said that its “deterrent effect” on corporate political speech “should not be underestimated.”

Trump, it seems, is not the only one who sees an opportunity to use the power of government to intimidate and silence speakers with whom he disagrees.

Consider the criticism that Trump is trying to intimidate the media. He has not only threatened to open up the libel laws — which Trump once said he used to “make [a reporter’s] life miserable” — he’s also repeatedly attacked many media outlets as partisan hacks out to undermine his campaign and his presidency. It’s a troubling attitude for a man who will soon preside over a government armed with, among other things, the antitrust laws, broadcast licensing laws and campaign finance disclosure laws, all of which could conceivably be used against the media.

But Trump isn’t the first politician to flirt with media intimidation. Remember the Obama administration’s attacks on Fox News as “not really a news station”? Or the FCC’s investigations of news broadcasters to determine if their coverage was “biased”? It is certainly scary for Trump to attack the media as he’s done, but it is equally scary when any president or administration does so. 

If we broaden the point beyond the media, we can find many more examples of efforts by politicians to intimidate those who oppose them. Remember Harry Reid’s sustained assault on the Koch brothers, whom he called “un-American” for having the temerity to oppose his agenda? Or the IRS’s targeting of Tea Party groups, which was prompted by politicians who urged the agency to investigate the groups?

Or consider Trump’s claim that post-election protests were not “legitimate” because they were allegedly financed by his political enemies. Philip Bump of The Washington Post has rightly criticized Trump for this, citing, among other things, his lack of evidence. But this sort of thing predates Trump.

The same sorts of criticisms were lodged against those who protested ObamaCare at town hall meetings in 2009. Many on the left dismissed the protests as “astroturf lobbying” because conservative groups helped organize some of them. It’s obviously dishonest to pay random people to pretend to protest and, if true, would destroy their credibility. But there’s no question that large numbers of people opposed ObamaCare, just as large numbers of people oppose Trump’s presidency. The left’s claims that opponents of their policies are paid corporate lackeys or members of the vast right-wing conspiracy fueled the IRS’s targeting of the Tea Party and a general assault on political speech. They are just as caustic as Trump’s rants against his critics.

My purpose here is not to defend Trump or to minimize his attacks on free speech. Nor am I only focusing on the hypocrisy of many of his critics. Hypocrisy is certainly worthy of criticism, not least because it detracts from the credibility of those who are trying to stand up for free speech at a time when we need as many defenders of the right as we can get.

But my point is more fundamental. We don’t just have a Trump problem or a hypocrisy problem. We have a serious free speech problem.

Too many people — among intellectuals, politicians and the media on both left and right — either don’t understand the right to free speech or don’t care to. They treat free speech not as a principle but as a weapon to be used against their political enemies. When your enemies are in power, complain about the threats to speech you like; when you are in power, use government to intimidate and silence your critics.

But free speech is a right, not a political weapon or a privilege of those in power. It applies to everyone, no matter what their views — whether they offend you or try to convince voters to support politicians or policies you oppose. Importantly, it also protects the right to take the actions necessary to make one’s speech heard, whether that means spending money on political ads or publishing books or newspapers free of the crushing costs of frivolous libel lawsuits. 

Trump poses such a threat to free speech because most politicians and intellectuals have not taken it seriously as a right for years. He is cashing in on the power he’s been given to threaten this right and on the hypocrisy with which it’s been treated and the cynicism that breeds.

We discovered on Election Day that many Americans agree with Trump on this and many other issues. Anyone who wants to protect free speech — and wants Americans to take the right seriously — must be prepared to take it seriously themselves.


Steve Simpson, a constitutional lawyer, is the director of Legal Studies at the Ayn Rand Institute. He is the editor of Defending Free Speech (ARI Press,2016). Follow him on twitter: @ssfreespeech.

The views of Contributors are their own and are not the views of The Hill.

Tags Chuck Schumer Donald Trump first amendment free speech Harry Reid Hillary Clinton John McCain

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