It is assuredly the case that, under a Trump administration, we can expect a lot of the political excesses of the Obama years to become déclassé, at least for the Left: executive action, extrajudicial assassinations, a kind of smug unilateral prerogative—liberals have vigorously defended all of these things for eight years, and it’s safe to assume that these things are suddenly about to go out of style.
Take, for instance, one of the chief characteristics of the Obama administration: relentless political and rhetorical attacks on fundamental American rights. Are those suddenly unpopular again? You bet. Witness Donald Trump’s recent tweet on the subject:
Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!
— Donald J. Trump (@realDonaldTrump) November 29, 2016
Now, on the one hand, of course Donald Trump supports the criminalization of flag burning: he surely has a dim, vague, half-bright understanding that this position will make him popular with a wide swath of the body politic, and he probably also knew that this demand would cause people—liberals, mostly—to start burning flags in the spirit of public defiance, something that makes the flag-burners look very bad and Donald Trump look very good. Trump may be a generally stupid fellow, but he has a canny political knack when it comes to this stuff.
Anyway, the New York Times responded by imploring “Mr. Trump” to “Meet the Constitution:”
Here’s where we explain what shouldn’t need explaining. Flag-burning is constitutionally protected speech. The Supreme Court has made this clear, in a ruling joined by Mr. Trump’s favorite justice, Antonin Scalia. It’s popular to want to punish flag-burners — pandering politicians, including Hillary Clinton, have tried. But the First Amendment exists to protect unpopular, even repulsive forms of expression.
It should go without saying that the New York Times is right and Donald Trump is wrong. For my money, Texas v. Johnson is about as good as it gets when it comes to First Amendment jurisprudence: even something as domestically hostile and offensive as flag-burning is protected speech. There is no place quite like the United States when it comes to free speech; most other countries, even the nominally “free” ones, are happy to criminalize various offensive behaviors, while in America we enshrine the right to those behaviors in our constitution. It is a fundamentally radical proposition; it is mundane to us only because we accept it as our birthright. And though Donald Trump is not quite bright enough to understand it, the facts nevertheless remain: in the United States, you cannot jail someone because they offend your delicate sensibilities.
That being said, it is interesting to see the New York Times lecture Donald Trump about what it is the First Amendment “protects.” The paper is on record as being openly hostile to free speech, claiming—somewhat ironically, given the editorial board’s recent pronouncement—that in affirming American speech freedoms, the Supreme Court was “disingenuously waving the flag of the First Amendment:”
The ruling in Citizens United v. Federal Election Commission radically reverses well-established law and erodes a wall that has stood for a century between corporations and electoral politics…
The founders of this nation warned about the dangers of corporate influence. The Constitution they wrote mentions many things and assigns them rights and protections — the people, militias, the press, religions. But it does not mention corporations.
Do tell. Neither does the Constitution mention “abortion,” but who’s keeping count?
In any case, the Times six years ago took a position that, philosophically speaking, is indistinguishable from Donald Trump’s today: they called for the criminalization of speech with which they disagree. It does not matter how many times someone says the word “corporation;” if they want to ban one part of free speech, then they want to ban free speech itself—full stop. It is of course worthwhile to point out that, say, the rights of “corporations” are in fact the rights of people themselves (who do the editors think runs corporations?); as well, it is helpful to perform some useful thought experiments in the vein of the Times‘s argument (if corporations don’t have constitutional rights, could they also be subject to unreasonable search and seizures? What about the quartering of troops on corporate property?); it is also useful to point out the illogical disparities in the Times‘s position (why should “corporations” be denied constitutional rights but “religions” should get them? Religions aren’t people!).
But in the end the only pertinent lesson here is the same one the Supreme Court has been teaching for decades: you cannot compartmentalize free speech. Every instance of free speech is a holon unto itself, simultaneously a part and a whole. It’s either free or it isn’t; you either have a First Amendment or you have something much worse.
This is not as axiomatically simple as it sounds: people have been trying to carve out exemptions for American speech freedoms since the ratification of the Bill of Rights itself, and fighting against the censorious impulses of American censors has been an ongoing, two-century-long battle. The same desires that animated the Alien and Sedition Acts at the end of the 18th century today animate both the New York Times and the President-elect. It is as old a fight as any in this country. The founders of this nation may have warned against “the dangers of corporate influence,” but you know what else they warned against—and specifically, what they made illegal? The suppression of free speech.
This is something Donald Trump doesn’t really understand but will nonetheless have to learn. And the New York Times—which is, let us not forget, a corporation—would do well to learn it, as well.