Congress and the rest of us are about to run head-long into the 1st amendment to the U.S. Constitution regarding “free speech.”
Ever read all those words? Well, here they are:
“Congress shall make no law respecting the establishment of religion, or prohibiting the exercise thereof; or abridging the freedom of free speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
That’s all of it. Right there. Forty-five words. But, just four words - “...freedom of free speech” are the ones pounced on by everyone who believes that right, as it may - or may not - apply to them, has been tampered with. And, while many people may make that claim, constitutional scholars by the hundreds have hundreds of “legal” interpretations but no clear answer. It can be awfully fuzzy.
Please note right here. I’ve spent a lifetime defending the right of free speech. As someone who’s been a reporter/writer for most of 60 years, I’ve held my nose and defended some really terrible “free speech.” And, for the most part, still do. But, there are limitations.
Here’s a list of generally recognized legal limitations to “free speech” I came across the other day: obscenity (depends on context but not regular old porn), fighting words, defamation, child pornography, perjury, blackmail, incitement to lawless action, true threats, solicitations to commit crimes and plagiarism of copyrighted material. Legal decisions have been rendered - and, for the most part, accepted - on all counts. But, as I said, “fuzzy”still applies
Private companies - like the one’s who’ve deleted all of Donald Trump’s accounts - have a lot of leeway in how they handle users - DJT and others - including their own employees.
But, let’s say you’re a government employee. Any government employee. Your employer has the right to make sure your speech doesn’t conflict with your job. But, (un)social media has made it more difficult to regulate employee speech in a constitutional way. (Un)social media has blurred a lot lines. Legal and otherwise.
So, let’s consider what DJT said awhile back which resulted in an attack on our Capitol. Were his words to a crowd of many hundreds, spoiling for a fight with Congress, really protected “free speech” as Republicans claimed?
Well, go back to the limitations list above and see. I find “incitement to imminent lawless action” and “solicitations to commit crimes” pretty well nails it. True threats, too. You might throw in “fighting words” for a topper. I don’t think he’s off the hook there.
When people talk of “free speech” relating to government, the issue is often turned on its head. “Free speech” in the Constitution is really used to protect you from government punishing you for your speech - not the other way around. But - and this is a big jump - the article citing “free speech” means government - and its representatives - are most often held to a higher responsibility to make sure what they do and say doesn’t lead to unlawful actions.
So, again, “free speech.” Did Trump cross the line? Did he abuse the right of “free speech?” Did he use his speech to instigate or condone illegal actions? My take is yes. One House of Congress, too, it seems.
Trump has proven to be the false prophet so many of us believed to be the case years ago. A lot of Republicans in Congress - and I believe elsewhere - have recently thrown in the towel and decided that is a fact, too. The defections in the House are interesting, especially some from the “hard” right.
While “Donnie” still has a corps of several million “believers,” it appears he’ll be too busy defending himself in one courtroom or another to “lead.” And, it seems, he’ll be too busy scrounging for dollars to keep his heavily mortgaged companies alive. Trump just has to be thinking that running for president was the worst decision he’s made on his own.
“Free speech” finally got him. Got him good.
But, look at the bright side. He’s got his own special place in our country’s history. And an asterisk beside his name, too. Something no other former president can say. Talk about speech. And free, too.