No Official, High or Petty
I’m not a lawyer, but over my last couple of years at UC Berkeley I received an intensive education in the First Amendment. So although what follows may be wrong, it probably isn’t.
When Donald Trump swore an oath to preserve, protect, and defend the Constitution of the United States, he did so either not understanding what the Constitution says about freedom of speech, or he understood and didn’t consider himself bound by his oath.
Earlier this week, Trump alleged on Twitter that “There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent” come November. There is no basis for this claim, and Twitter, under pressure to rein in Trump’s rampant abuse of truth, added a fact-checking link to the tweet, whereupon Trump alleged that Twitter “is now interfering in the 2020 Presidential Election” and “stifling FREE SPEECH.”
Sorry, neither. But the news coverage I’ve seen has focused almost entirely on Trump’s potentially self-defeating retaliation against Twitter and other social media rather than the legal frivolousness of his claims. One article in the New York Times seemed to accept Trump’s argument as true: “he made it clear that he would seek to punish Facebook, YouTube or other platforms that interfered with his ability to communicate directly with his followers.” [Italics mine.]
So let’s review basic First Amendment law, if not for Trump’s sake, then for reporters who should know better (or write with more precision).
Point one: the First Amendment applies to government entities only. Unless Twitter and other social media are suddenly deemed part of the government, a stretch even Brett Kavanaugh won’t make, they are not subject to the First Amendment.
Point two: even if the courts rule that the First Amendment extends to Twitter, Twitter did not stifle Trump’s freedom of speech. He got to send his tweet directly to his followers, unimpeded and unedited.
What Twitter did do was challenge his veracity. This has happened before, by other tweeters rather than Twitter itself. Trump blocked the dissenting tweeters from his account, the dissenters took him to federal court, and they kicked his ass. That decision came down less than a year ago, but again, Trump either doesn’t understand it, or understands it and doesn’t care.
When right wing provocateurs came to UC Berkeley in 2017, they and their supporters claimed they were innocently exercising their right of free speech and the left was violating the Constitution by shutting them down. We knew there was more to it, and this largely unnoticed investigative piece affirmed many of our suspicions.
This week it’s become even more obvious what a sham — and projection — that argument was. As Adam Serwer put it in The Atlantic Monthly, “if your freedom to speak depends on the president approving of what you say, then you simply don’t have freedom of speech.” Serwer’s colleague Mary Anne Franks, in a separate article, quoted from West Virginia State Board of Education et. al. v. Barnette et. al., a pivotal Supreme Court decision from 1943: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”
Trump and his acolytes don’t believe in freedom of speech. They’re authoritarians who believe in freedom of speech for themselves only: they have the right to impose their delusional, maladapted worldview on the rest of us, and our choice is either silence or punishment.
In time, they will be repudiated. They always are. But not before they do substantial harm.