The First Amendment: What It Really Means for Free Speech and Why Donald Trump Is Trampling on It

United States (Conversation) – US President Donald Trump is engaged in a deliberate and insidious campaign to undermine freedom of expression in the US – essentially declaring war on the First Amendment.

In a “normal” political climate, this threat to one of America’s most fundamental freedoms would warrant the intense and sustained attention of the media and the public. But these aren’t “normal” times – and this threat to democracy, like so many others, is largely ignored as the collective attention of the public shifts from one outrageous incident to the next.

This attack on freedom of expression warrants particular attention because it threatens one of the most fundamental facets of American democracy – the right of the people to criticise the government.

Adopted in 1791 as part of the Bill of Rights, the First Amendment reads:

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.

Current debates surrounding freedom of expression reveal a key misunderstanding of the nature and scope of the First Amendment. In the US, there exists an enduring tradition of “negative freedom”, which is defined as freedom from government interference.

Indeed, free speech is not the right to say anything you want, whenever and wherever you want to say it. Rather, it is freedom, generally speaking, from the government interfering with you saying anything you want, whenever and wherever you want to say it. This is a distinction with a very important difference that is lost in the clamour of the Trump era.

This means that the protections afforded under the First Amendment are only triggered when the state takes an action that restricts expression. It does not constrain the conduct of private individuals or entities, including businesses. Therefore, contrary to what many Americans (and apparently the president) believe, there is no First Amendment right to use Twitter or have a Facebook page.

As private entities, social media companies are free to adopt policies relating to user content and to remove users who violate such policies without implicating the First Amendment. Moreover, the First Amendment protects the expression of corporations and other associations, as well as individuals. This means that Facebook, Twitter, and others have free speech rights.

Silencing ‘Conservative’ voices?

These are a few of the many reasons why president Trump’s July Social Media Summit, staged in the White House and to which no social media companies were invited, was so outrageous. If we ignore the spectacle and rhetoric surrounding the event, which amounted to little more than a far-right extremist conference hosted by the White House, we are left with a naked attempt by Trump to undermine the First Amendment.

The event was described by the president as part of a larger campaign to address the purported silencing of and bias against conservative voices on social media platforms, a narrative that Trump and the Republican Party have been pushing, without evidence, for some time.

These purported “conservative” voices include far-right conspiracy theorist and InfoWars founder Alex Jones – perhaps best known for perpetuating the lie that the mass shooting at Sandy Hook elementary school that killed 20 children and six adults was a hoax – and white supremacists, including Paul Nehlen, among others.

At the summit, Trump declared that he was directing the administration to “explore all regulatory and legislative solutions to protect free speech and the free speech rights of all Americans”.

The irony of this statement is that any regulatory or legislative action taken by the government, which obviously includes the Trump administration, would constitute a threat to the free speech rights of all Americans.

‘Enemy of the people’

While president Trump’s efforts to regulate speech on social media platforms raise significant free speech concerns, they are just one part of a larger campaign to undermine the First Amendment, which includes his repeated attacks on the press as “the enemy of the people”.

Of particular concern is the president’s attack on the right of every American to criticise state actors and acts, which the United States Supreme Court recognises as a prerogative of citizenship. And his tactic seems to be working: a recent poll by Hill-HarrisX revealed that even 40% of Democrats and Independents view criticising the government as unpatriotic (unsurprisingly, a much higher proportion of Republicans share this view).

Obscured by a veneer of false patriotism and jingoistic rhetoric, president Trump is eroding one of America’s most fundamental freedoms. This attack on freedom of expression is not only dangerous, it is profoundly un-American. To define patriotism as blind allegiance to a political figure is to fundamentally misconstrue the very core of American democracy as enshrined in the First Amendment – it is the right, indeed, the responsibility of citizens to engage in debate over matters of public concern and to criticise the government when it fails to live up to the ideals on which the US was founded.

This is the right of all Americans, regardless of party affiliation. Yet, citizens are living in an era when this most fundamental act of patriotism is characterised by one of the two major political parties as tantamount to treason. An era when citizens are told that the only way to prove one’s allegiance to the US is to pledge allegiance to the president. An era when the flag is used, not as a symbol of American ideals, but as a weapon to stifle political dissent.

The irony is that Trump enjoys the benefits of the most expansive free speech protections on the planet by engaging in the type of hateful rhetoric that is banned in every other liberal democracy, while telling the populace that it is un-American to exercise their First Amendment rights. And, perhaps most dangerous of all, we have a president who is fashioning himself as a great defender of the very right he is actively endeavouring to erode.

It is a privilege to be empowered with the right to criticise one’s government. In many countries, it can result in torture, imprisonment, or death. Americans should not waste this privilege, but use their right to free speech by challenging the president’s version of America, which is predicated on hate, divisiveness and unchecked power. After all, to fully exercise this right is ultimately to be a patriot.The Conversation

This report prepared by Eliza Bechtold, PhD candidate and qualified attorney, Durham University for The Conversation under a Creative Commons license. 

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