Dealing with “Hate Speech”

This chapter discusses the controversies over “hate speech” that have dogged President Trump’s early years in office. It provides a brief primer on the First Amendment doctrine relating to “hate speech,” under which derogatory expression is mostly considered protected speech. The chapter examines both the harms associated with “hate speech” and the principal justifications for protecting it. It criticizes the Trump administration’s handling of issues relating to “hate speech.” It also addresses the special problems associated with governmental “hate speech.” The chapter concludes with a consideration of the extent to which the government can use its own expressive powers to educate Americans about the need to preserve both freedom of speech and the security and equal dignity that “hate speech” undermines.

The Anti-orthodoxy Principle

This chapter examines the “anti-orthodoxy principle,” which holds that governments and majorities cannot compel or prescribe what thoughts or gestures are acceptable in the realms of politics, culture, or faith. President Trump’s public dispute with NFL players and owners over pregame protests, petty insistence on certain holiday greetings, proposal to criminalize flag-burning and denaturalize flag burners, and insistence on “loyalty” all implicate the anti-orthodoxy principle. The Supreme Court has frequently and ardently rejected governmental efforts to compel convention or punish dissent from majority opinion. This position is rooted in principles of speaker autonomy and freedom to dissent. The president’s statements and actions have challenged Americans to once again tolerate peaceful forms of dissent and differing views regarding matters such as patriotism, religion, social justice, and race.

The Public Forum

This chapter examines concerns relating to preserving access to public properties for the purpose of facilitating freedom of expression. Historically, speakers and groups have fought to obtain and preserve First Amendment rights to access and use what are referred to as “public forums”—places that the government owns or controls, but that are held in trust for the people for the purpose of exercising First Amendment rights. The “law and order” mantra of the Trump Era has revived concerns, dating in particular from the 1960s and 1970s, about preserving speakers’ access to public places including streets and parks. Government “law and order” policies and actions, along with various other access limits, raise concerns about the continued viability of the public forum. In addition, during the Trump Era, issues have arisen with regard to speakers’ access to places in the “modern public square,” including official social media sites. President Trump’s decision to block several critics from the comment portion of his Twitter page is only the most prominent example of this new access concern, which will affect dissenters’ ability to communicate with an increasing number of public officials. Preserving access to traditional and digital forums will be critical to maintaining a culture of dissent.

Dissent

This chapter considers a concept that connects all of the previous chapters to one another: dissent. Dissent is itself a central First Amendment concern. As the book’s chapters show, the Trump Era has been marked or marred by various efforts to challenge or suppress dissent. After briefly discussing the meaning of dissent, the chapter examines the democratic and social values of dissent and current challenges to participating in active dissent. It considers the steps necessary to preserving a culture of dissent in the United States. The positive and potentially uplifting lesson of the book is that time and again, dissent and dissenters have ultimately defeated the worst authoritarian impulses. However, this process has generally taken long stretches of time, during which the American people have considered and recalculated the costs and benefits of allowing dissenting voices to be heard.

Sedition

This chapter examines the concept of “sedition” and efforts to suppress dissent and disloyalty. President Adams used the Sedition Act of 1798 to prosecute and jail his critics and political opponents. That episode ultimately revealed the “central meaning of the First Amendment”—that Americans must be free to criticize their public officials, even if that criticism is often caustic and unpleasant. Federal and state officials have not proposed reviving the crime of seditious libel. However, several critics of the Trump administration have come under fire and suffered tangible consequences for openly criticizing the president and the Trump administration. As in prior eras, recent efforts to punish sedition and disloyalty pose serious threats to democratic self-government and political discourse.

A Free and Independent Press

This chapter discusses the fragility and necessity of a free and independent press. It places the Press Clause of the First Amendment in a historical and constitutional perspective, and considers both the core functions and the occasional excesses of the institutional press. President Trump is not the first chief executive to attack and challenge the institutional press. However, his attacks have been uniquely pervasive and public. The president’s “war” on the press has raised serious questions about the prospect for preserving a free and independent press. The chapter argues that despite its excesses, the institutional press is both necessary to a functioning democracy and, for a number of reasons, precariously positioned to fail.