Our top priority in responding to the events of January 6 must be to identify and prosecute, to the fullest extent of the law, those who committed acts of violence, vandalism, and desecration of the Capitol and otherwise disrupted the counting of the electoral votes.
But we must also be concerned with the civil liberties of all involved. Prosecutions must be conducted with due regard for the legitimate rights of the defendants lest their convictions, if any, be overturned on appeal. And as someone who makes a living with words, I’m especially concerned with issues related to freedom of speech and its limits. Did a publisher have the right to reverse its decision to publish a book manuscript submitted by Senator Josh Hawley, one of President Trump’s most avid followers and a leader of the fight to reject electoral votes cast for Joe Biden by the states of Arizona and Pennsylvania? Do social media platforms have the right to limit or even deny Trump access? And can Trump be prosecuted for inciting his followers to riot?
The original purpose of the Bill of Rights, of which the First Amendment’s guarantee of freedom of speech is a part, was to limit the power of the national government only. It was added to the Constitution to appease those who thought that without it the national government would otherwise have too much power over We the People. In the last century the United States Supreme Court has, in a long series of rulings, decreed that state and local governments are likewise limited by most of the Bill of Rights, including the First Amendment.
But private corporations are not so limited. For example, ESPN, which had hired Rush Limbaugh to provide football commentary, was well within its rights to sever its ties with him after he opined that a Black starting quarterback had won his position because of his race and not because of his ability. By the same token, Slim Fast had a perfect right to fire its TV spokeswoman, Whoopi Goldberg after she performed a comedy routine in which she compared George W. Bush to a part of her anatomy. Whether Limbaugh was right or Goldberg funny is irrelevant. No government could have legally suppressed their freedom of speech. But their respective private employers could, and did.
Which brings us to Josh Haley. Simon and Schuster had accepted for publication his book manuscript purportedly describing the dangers of social media giants. But given Hawley’s leadership role in the events of January 6, Simon and Schuster cancelled whatever agreement it otherwise had. Hawley is threatening to sue. He may be able to claim breach of contract, but he cannot accurately claim, as he’s trying to do, that his First Amendment rights have been violated. In his particular case, the First Amendment offers no protection. By the way, Hawley is free to shop his book around to any other publisher; no publisher can be forced to either accept it or reject it.
Nor is any social media platform obligated to grant or deny Trump access. Twitter, for example, as a private entity, can impose whatever limits it chooses. Of course, Trump’s followers are free to boycott any social media platform which limits or bans Trump.
But what about Trump’s speech immediately before the march on the Capitol? Can he be prosecuted for incitement to riot? Should he be?
Here’s where things get murky. No right is truly absolute. Even freedom of speech has its limits. Libel, slander, pornography, and shouting “Fire!” in a crowded theater are not necessarily protected. Many believe Trump’s remarks that day are likewise beyond the First Amendment pale. But a posting on the Facebook page of Reason, a libertarian magazine of opinion, says otherwise.
Reason describes Trump’s behavior last week as “outrageous and irresponsible,” and his remarks as “inflammatory” and “incendiary.” But Reason further notes that while the crowd was inspired by Trump’s remarks, his remarks nonetheless do not rise (or sink) to the level of incitement. Reason cites both federal law and the Supreme Court decision in Brandenburg v. Ohio to argue that since Trump did not explicitly advocate violence, his remarks were protected free speech. To the contrary, while Trump urged his supporters to march on the Capitol, he said they should do so “peacefully and patriotically [to] make your voices heard today.” This admonition, while dismissed by his critics as meaningless boilerplate not indicative of his true intentions or desires, could get him off the legal hook.
Or maybe not. The desire to have him prosecuted is powerful and the Justice Department has not ruled out such a case. But whether or not Trump is tried, and whether or not he is convicted or acquitted, the consequences could be dire. Not prosecting him could encourage more “inflammatory” remarks from other sources, as could an unsuccessful prosecution too. But a successful prosecution could also set a precedent by which others—political leaders or speakers at rallies for movements such as those involving BLM, Antifa, the Proud Boys, Patriot Prayer, etc—could have their remarks examined for possible prosecution, depending on the circumstances. What impact would this have on freedom of speech?
The answers to all these questions are debatable and not altogether clear. But at least, for the time being, we have the freedom of speech to more thoroughly examine these issues.
Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present). He was Mayor Pro Tem of Stephenville from 2008 to 2014. He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.