The Blog

2021-

2021-01-19 d
LYNCHING LIBERTY II
"But we are witnessing myriad ways in which the illiberal liberals can try to informally cancel the First Amendment in practice – whether by banning Trump and many others from social-media platforms, or by imposing restrictive speech codes across American college campuses."

Now they want to cancel the First Amendment

The claim that President Trump is guilty of ‘incitement to violence’ is a threat to free speech for all.

President Donald Trump has never been a friend or fan of the precious First Amendment to the American Constitution, which protects freedom of speech. But the First Amendment does not care; it still protects the right of President Trump to express his opinions, just like everybody else.

This is what makes the attempts to ‘cancel’ Trump in Congress and across social media, for allegedly inciting the violence at the Capitol, so dangerous. Because those who want to silence and eject an elected president for saying the ‘wrong’ things are really trying to rewrite the meaning of the First Amendment, which would lead to restrictions on free speech for all.

It is not a question of supporting outgoing President Trump’s attempts to cling to office or endorsing anything he has said. This is about something much more important than the Donald. It is about upholding
the fundamental freedom of all Americans, from the president and politicians to any fool or fanatic, to express what they think is the truth.

Adopted in 1791 as part of the Bill of Rights, the First Amendment to the American Constitution remains the global gold standard on free-speech legislation. It states clearly and concisely that ‘Congress shall make no law… abridging the freedom of speech, or of the press’. One of the few exceptions recognised by the US Supreme Court is that there is no ‘right’ to use speech to incite violence or lawless action.

This exception has now been seized on by Trump’s opponents in their attempts to justify cancelling the president. In banning him from their platforms, both Twitter and Facebook cited Trump’s alleged incitement of the Capitol rioters. Facebook chief Mark Zuckerberg declared that they could not tolerate Trump’s ‘use of our platform to incite violent insurrection against a democratically elected government’.

Other Trump-haters inside and outside Congress have focused on the president’s speech to a large crowd of supporters in Washington, shortly before the violence at the Capitol. Celebrity scientist Professor Steven Pinker tweeted that, although he is personally a ‘strong free speech guy’, the tech giants’ ‘deplatforming of Trump seems justified’: ‘Even First Amendment jurisprud[ence] (lenient standard) exempts inciting imminent lawless action.’

Thus has Trump been speedily tried and convicted of incitement in the mainstream and social media, with the enthusiastic support of many liberals. This development is a real danger to freedom of speech. Because make no mistake: if President Trump can be effectively convicted of incitement and silenced for what he said last week, so could anybody forcefully expressing an opinion which others find offensive.

The incitement exemption to the First Amendment is actually framed in very narrow terms. It states that speakers are protected, unless their words are intended towards ‘inciting or producing imminent lawless action’ and also ‘likely to produce such action’. In order to fall foul of the First Amendment, then, the incitement to lawless action must be deliberate and the threat of violence both real and imminent.

This rule dates from the famous 1969 Supreme Court case of Brandenburg v Ohio, when the court overturned the conviction of a Ku Klux Klan leader who had denounced black people and Jews at a rally. To many, upholding the right of the KKK to spout racist bile may not seem like a big victory for freedom today. But in drawing a firm line between hateful words and violent deeds, and affirming that the expression of views others find repugnant is not in itself a crime, it laid a firmer foundation for free speech in America as an indivisible and universal right.

What did Trump say last week that crossed that firm line and constituted an indictable incitement to violence? Nothing that I have seen or heard. Instead, the moves to cancel the president constitute an attempt to widen the definition of incitement and neuter the First Amendment in a way that should alarm any ‘strong free speech guy’ anywhere on the political spectrum.

Twitter announced it was banning Trump because his tweets ran the ‘risk’ of ‘inciting violence’. Yet as Brendan O’Neill pointed out on spiked, the two tweets it cited did nothing of the sort. In one, the outgoing president praised his supporters as ‘great American patriots’ who would have a ‘GIANT VOICE’ in America’s future. In the other, Trump tweeted that he would not be attending the inauguration of incoming president Joe Biden. These tweets might qualify as typical Trump-style invitations to either cheer or ridicule him, depending on your point of view. But how could a declaration that Trump intends to stay home on inauguration day amount to incitement to violence?

... Indeed. Imagine the possible consequences of making it a punishable offence for anybody in politics to call on supporters to ‘fight’ for their cause or to ‘show strength’ in standing up to their opponents. It would be the end of democratic political debate as we know it.

The attempt to broaden the definition of ‘incitement’ casts a long shadow over the future of free speech. It could provide a licence to outlaw any opinion which is unacceptable to the liberal establishment. We should always remember that the verb ‘to incite’ can mean simply to urge somebody towards your desired goal. In that sense, as a famous US Supreme Court judge once put it, ‘Every idea is an incitement’. And ideas should never be criminalised or cancelled. (read more)

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