In a week that witnessed President Donald Trumps unrelenting, frontal assault on the First Amendment freedoms of speech, press and expression, it became crystal clear, in his own words, that what he wants to do is to suppress speech that is critical of him.
On Sept. 19, Trump told reporters in the Oval Office that negative coverage about him is really illegal. He seems to mean it. On the same day, a federal judge dismissed as improper and impermissible, and a violation of the rules of federal procedure, his defamation suit against the New York Times, for articles questioning his success as president.
On Sept. 16, Trump accused reporter Jonathan Karl and his employer, ABC News, of engaging in hate speech against him, and warned Karl that his Attorney General, Pam Bondi, might go after you. On Sept. 20, Trump demanded that Bondi prosecute his political opponents, and ordered her not to wait, but to do it, NOW!!!
All this occurred in the same week that Trump cheered the suspension of the ABC late-night talk show host, Jimmy Kimmel, taken down by the chair of the Federal Communications Commission, Brendan Carr, who said, we can do this the easy way or the hard way. Sens. Ted Cruz (R-Texas) and Rand Paul (R-Kentucky), and a host of conservatives who admire the First Amendment, criticized Carr on grounds that he has no business pressuring a network to remove someone for saying something he doesnt like. Cruz said Carrs actions are dangerous as Hell and straight out of a Mafia movie. When ABC reinstated Jimmy Kimmel Live!, Trump condemned the network and suggested he might bring another defamation suit.
Trumps threats against the media and, more broadly, those who dare to criticize him, reflect an authoritarians disdain for freedom of expression and, historically, harken back to the old English law of seditious libel which, among other things, made punishable speech that might instill in the people contempt of their government or lower their esteem for their rulers. Americas founders rejected seditious libel when they drafted the First Amendment guarantees of speech and press freedoms.
Trumps warnings exhibit ignorance of the foundations of a free society and put him at odds once again with the framers of the Constitution and the Bill of Rights. The bold libertarianism behind the founders commitment to freedom of expression was based on the novel and democratic theory that free government depends for its existence on freedom of discourse. The scope of the First Amendment was determined by the character of the government and its relationship to the people. Since the American government is the servant of the people, exists by their consent and for their benefit, and is constitutionally limited, responsible to the people and elected by the people, the president may not tell Americans: “You shall not think this or that, or if you do it is at your peril.” An authoritarian, however, would assert such authority.
At bottom, a government of, by, and for the people, as Abraham Lincoln described our system, depends on popular elections. The libertarians who justified freedom of expression for individuals and opposition parties dissidents agreed that the widest possible scope of protection must be secured to maintain a free and informed electorate, one capable of making reasonable choices. Freedom of expression might be abused, but the people, if exposed to all opinions, would choose wisely when it came to candidates and policies. The scheme of seditiousness can exist only in a relationship based on inferiority, as when people are subjects rather than sovereigns and their criticism represents contempt for their master.
In America, where the people are sovereign and the source of governmental power, James Madison declared, the case is altogether different. Coercion and abridgment of speech violate the fundamental principles of a free society. The crime of seditious libel, the libertarians believed, could not be reconciled with the genius of a Constitution that guarantees freedom of expression. Indeed, one of the major tenets of this new libertarianism, radical because it was an exercise in self-defense against a government that would censor speech, was that a free government, in contrast to Trumps view, cannot be criminally attacked by the opinions of its citizens. The libertarians teaching, that the government must be bitted and bridled by the Bill of Rights, is their great legacy.
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