J.D. Tuccille: When politicians oppose free speech — except their own

Power-hungry legislators are exactly who the U.S. Constitution was intended to thwart

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J.D. Tuccille

(National Post Oct 12, 2024)

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The U.S. political system is peculiar. While it’s wandered far from its origins, it’s a government based on the principle that people who seek power can’t be trusted, and it’s a democracy rooted in the belief that majorities can be as tyrannical as dictators. Not everybody agrees, of course, including members of the political class who propose to “save the republic” from rivals while rejecting restraints on power.

Last month, former Secretary of State and 2004 Democratic presidential candidate John Kerry complained that the competing voices of social media make it difficult “in terms of building consensus around any issue” because “people self-select where they go for their news or for their information.”

He fretted that if people prefer a news source that “is sick and has an agenda … our First Amendment stands as a major block to the ability to be able to just hammer it out of existence.” His hope was to overcome this impediment by “winning enough votes that you’re free to be able to implement change.”

The same month, 2016 presidential candidate Hillary Clinton said Americans are spreading what she calls “Kremlin propaganda” and should be “civilly or even in some cases criminally charged” for their speech. Last week she complained “we lose total control” if online discussions aren’t heavily regulated.

Current presidential hopeful Kamala Harris worried in 2019 that social media sites are “directly speaking to millions and millions of people without any level of oversight or regulation, and that has to stop.” Harris is vice-president in an administration that tried just that through back channels, leading Meta CEO Mark Zuckerberg to tell Congress “senior officials from the Biden administration … repeatedly pressured our teams for months to censor” discussions about COVID-19 and Hunter Biden’s laptop.

Harris’s running mate, Tim Walz, wrongly claims ”there’s no guarantee to free speech on misinformation or hate speech.” Robert Reich, the Clinton-era secretary of labour, wants Elon Musk arrested “if he doesn’t stop disseminating lies and hate on X.” Sen. Elizabeth Warren (D-Mass.) threatened “to break up Big Tech so you’re not powerful enough to heckle senators with snotty tweets” after Amazon slapped back at her over tax policy.

This flurry of threats to speech protected by the First Amendment comes from a rogues’ gallery of Democrats who will respond that Donald Trump did it first and that they need to save democracy from his threat. They’re right the GOP presidential hopeful also has a taste for abusing power, though who started it is a judgment call, as is the question of who poses the greatest threat to the republic.

“Burning the American flag, I want to get a law passed … you burn an American flag, you go to jail for one year,” Trump harrumphed in August. It wasn’t the first time he’s called for jailing protesters who use flags as fiery props. He made the same call in July and floated the idea when he was in the White House, even though flag-burning is protected by the First Amendment.

Trump also thinks people who criticize judges and Supreme Court justices “should be put in jail,” as he commented last month (he might want to be careful about that, given his own criticism of the bench).

Also worthy of legal attention, says the former and potential future president, are “lawyers, political operatives, donors, illegal voters, & corrupt election officials” involved in what Trump, who claims the 2020 presidential contest was stolen, considers unscrupulous election-related behaviour. They “will be sought out, caught, and prosecuted at levels, unfortunately, never seen before in our country.”

Trump’s running mate, J.D. Vance, wants to ban pornography, though it generally enjoys constitutional protection. Vance’s instincts extend to political opponents. In 2021, Vance asked interviewer Tucker Carlson, “why don’t we seize the assets of the Ford Foundation” and other non-profits that pursue left-wing policies on hot-button issues. The veep nominee also wants to “seize the administrative state for our purposes,” replace existing bureaucrats with “our people” and defy the courts if they object.

Florida’s Republican Governor and recent presidential contender, Ron DeSantis, and his party’s lawmakers pushed the Stop WOKE Act to ban controversial racial training adopted by private companies. It was blocked on First Amendment grounds.

If you seek evidence that candidates for public office and political partisans disdain restraints on power when that power is in their hands, and want to punish opponents, there’s plenty of evidence on both sides of the aisle. This would come as no surprise to the founders. During debates over adopting the constitution, James Madison wrote about the balance necessary in designing a government. “You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

Madison feared letting majorities run roughshod. “In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign, as in a state of nature where the weaker individual is not secured against the violence of the stronger,” he warned.

The imperfect result was a constitution that limited government with checks and balances, and a Bill of Rights that forbade officials from interfering with many freedoms. The intent was to let people do and say a good many things that officials don’t like but are powerless to prevent or punish. It goes without saying that the U.S. government is now much larger than intended, and exercises far more authority than was contemplated by the founders. But that’s still not enough for some critics.

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Writing last month in The New Yorker, Louis Menand noted a new crop of scholars who are dissatisfied with the constitution. In their ranks is Erwin Chemerinsky, dean of the law school at the University of California–Berkeley, who hopes to strip anti-majoritarian elements from the system. Others want to completely scrap the document and start over with something that would deliver their preferred results.

But these scholars are playing catch-up with a political class intent on simply ignoring First Amendment protections for speech and constitutional restraints on their power. Ironically, efforts to abuse the power of office to hurt opponents is precisely what the founders intended to prevent with the constitution.

That authoritarian politicians justify their actions as responses to opponents who they allege are the real danger to the republic is also no surprise. Those who think coercive government is a solution to problems will inevitably try to apply it to opponents they see as problems.

The American Constitution was intended to thwart the kind of people who now make up pretty much the entire political class. We’ll see if it’s up to the challenge.

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