Friday, March 11, 2016

Donald Trump has First Amendment rights

Okay, tonight in Chicago, a Donald Trump rally was cancelled due to the unrest in the arena. As much as I dislike Donald Trump and even think he is a fascist, I say to the protesters that Donald Trump also has First Amendment rights. He should be allowed to spew his hate speech. Now, don't get me wrong. I support the right to protest. But not at the cost of silencing another's voice. So, protest. But do it outside of the venue.

We live in a democracy where we value the marketplace of ideas. An angry mob should not be allowed to shut down speech. The First Amendment was designed to protect unpopular speech. That's so ideas can be heard and compete. That's how change happens. An unpopular speech with the government may be the right approach to change. It should not be censored.


Unknown said...

The first amendment only protects you against GOVERNMENT intervention--not other people. The media has been suggesting the first amendment is at play here but it frankly hasn't been. So no, Trump's first amendment right has not been violated.

Bernie Wong said...

Samantha, that's a literal reading of the First Amendment. All law is designed to cater to policy. The First Amendment stems from concept of free speech that is the ability to express oneself.

In fact, governments and courts have extended the First Amendment protections to individuals so they may speak without others from censoring their speech. Police routinely provide protection to rallies and protesters. In fact, at the Trump rally, the Chicago police was trying to protect everyone on the basis of the First Amendment.

Huffington Post reported police tried to protect First Amendment rights of Trump and others. Paragraph 14.

In another example, the United States Supreme Court made it more difficult for individuals to sue the press for defamation. New York Times v. Sullivan, 376 U.S. 254 (1964)

But nothing better demonstrates my point than Islamic extremists trying to censor speech in western nations like France. This is not the speakers own government but other individuals. The importance of free speech is essential to democracy. It should not be shut down by government or a mob.

Unknown said...
This comment has been removed by the author.
Unknown said...

I think I understand where you've gotten confused. The first amendment literally does only apply to congress and government actors (as does the whole constitution).

In NY Times v. Sullivan, the first amendment freedom of the press was implicated because congress (again the government) had created defamation laws that abridged the paper's right to free speech when people could too easily sue without proof of malice. The holding was to balance the rights of people to justice when they were being lied about with the right of papers to print freely without fear of frivolous defamation claims through a requirement that plaintiffs show the paper acted with malintent. But the issue was how to apply the law congress wrote such that it wouldn't violate the first amendment right of the paper. Thus, that case does not prove what you thought it did--but rather is an excellent example of a law congress created that violated the first amendment.

The police statement in the Huffpost article is not wrong but you've misunderstood. The police protect your 1st amendment right to speech by trying not to interfere. They are protecting you, in essence, from themselves. Though, as an attorney, I would caution you about taking legal advice from police in the future.

Further, I want to recognize the point you made about how, in general, the laws in America are designed to promote discourse---that's totally true! Other laws may embody the spirit of free speech---but those are OTHER laws and frankly have nothing to do with violations of the 1st amendment unless it is the government doing the censorship.

Another great example of where I think you've gotten off track (and you aren't alone), are the gay wedding cake cases across the country where bakers claimed their 1st amendment right would be violated by having to bake a cake. Let's be clear that case was about discrimination laws and the bakers claimed their right to refuse to speak was being violated by he discrimination laws. It wasn't the gay citizen that violated the baker's right but the law that allowed that gay citizen to sue.

Your statement that courts have extended the first amendment in any pervasive way is an extreme overstatement. All cases that have ever been applied as such have been overturned or are on appeal for the very reason I've explained. I can't think of any that have rightly gone your way recognized as precedent.

Bernie Wong said...


You have misread what the Chicago police said. They said they were there to protect the First Amendment rights of the speakers. That includes Donald Trump. Here's the exact quote.

"Chicago police said in a statement they played no part in the decision and were working with university police and the Secret Service "to protect people's First Amendment rights and ensure everyone is able to disperse the area safely."

Your comment about the police protecting the speakers from the police is illogical. Police often protect marches, and speakers from other private individuals who may want to harm and disrupt. The police don't go to rallies and stare at each other wondering if another police officer is going to disrupt the rally. Don't bend a fact like a pretzel to fit your narrative.

Second, your reading of the Constitution is too literal. By your definition, the fundamental right of association would not be found under the First Amendment since it's no where in the text. I'm also grateful that the Supreme Court found a fundamental right to privacy in Griswald v. Connecticut. If we read the Bill of Rights as you suggest, none of these fundamental rights would be recognized and cherished by Americans.

I did not bring up gay marriage and those who oppose it. But by your reading, the Constitution would not recognize gay marriage either. Bakers who refuse to bake a cake for a gay couple is not what I'm talking about here. That being said, the Court held that gays did have a right to marry even though it's not mentioned in the Constitution.

I'm worried that free speech may be shut down by an angry mob. The First Amendment is a reflection of the policy to allow individuals to express themselves in a democracy.

Since you threw down the attorney card, let me do the same. I am also an attorney. I go by Bernard Wong rather than Bernie. In the nineties, I did pro bono work for the American Civil Liberties Union. I was lead counsel in Johnson v. Cincinnati, 310 F.3d 484 (6th Cir. 2002) In that case, I established a fundamental right to intrastate travel for the Sixth Circuit. Now, the Constitution says nothing about the right to travel within a state. If we were to take your literal interpretation of the Constitution, I would not have won.

As an ACLU lawyer, we were deeply concerned about SLAPP lawsuits. The acronym for Strategic Lawsuit Against Public Participation. These suits were done by private individuals not government actors in order to suppress the free speech of protesters. And the law we used to fight on behalf of the protesters was the First Amendment.

I am guided by the spirit of the First Amendment. Without free speech, change for the good may never occur. Let us have a marketplace of ideas. Let me quote Evelyn Beatrice Hall when discussing Voltaire,

"I disapprove of what you say, but I will defend to the death your right to say it"

I disagree with Donald Trump but defend his right to say it.

Unknown said...

#1 police attend rallies to prevent violations of criminal law---not constitutional law. So yes, they are there to prevent harm. Interesting how the police stated that they played no part in the decision to cancel the rally---because doing so could have been a violation of the constitution.

#2 my "interpretation" isn't interpretation of the text at all---but the simple fact of who the constitution applies to.

#3 I agree with everything you said about a looser interpretation of the constitution politically in every way. But that has nothing to do with who the constitution applies to... The government alone. It would be rediculous to suggest that the powers of the president could be extended to me or that I should be restricted from advocating for a specific religious belief. Your interpretation of the constitution would suggest the restrictions on the government could be restrictions on the people. As such a mother who silences her child could be said to have violated the first amendment. You are absolutely free to delete my comments here without any constitutional law violation because you cannot violate the 1st amendment. If I refuse to sell you a gun, it does not violate the 2nd amendment.

You have yet to point to a single case (other than the case which I already explained that you fundamentally misunderstood why the first amendment was implicated) where the first amendment has been violated by an individual's against an individual. I'm sorry, but the law is on my side, whether you agree with it.

The constitution is to protect the rights of the people against the government. That's just how it is. We have other laws in place protecting those same rights from intrusion by fellow citizens---like disturbing the peace for example and all civil and criminal laws practically... but they are DIFFERENT LAWS.

Again... As I explained about NY Times v. Sullivan, you fought the SLAPP claim ITSELF---you fought the law, the claim, the court proceeding, claiming it violated the first amendment... Because "congress shall pass no law to abridge free speech". You didn't say that people where violating other people's free speech by the act but rather that an unconstitutional claim existed to silence them in court and that claim should not exist or should not exist in a way that censors people. Laws are unconstitutional. Actions of the government are unconstitutional. Actions of people are not and cannot be.

You will be hard pressed to cite any case law for me or any scholarly work in defense of your position---believe me, I looked in the course of this conversation.

As for my position:
Repeatedly explaining what the government can and cannot do in relation to constitutional rights:

And any constitutional law textbook chapter 1.

Unknown said...

Cases where the courts grappled with who a "state actor" is for the purpose of the first amendment---because that's a threshold issue for the claim.

Bernie Wong said...


I'm not saying that Donald Trump can sue Chicago for violations of his First Amendment rights. I'm concerned about an angry mob shutting him up or for example, Islamic extremists threatening the speech of others in this country.

Maybe we should state the issue. "Can people protest at a Donald Trump rally?" The answer to that question depends on where the rally takes place. In public forums, the answer is yes. If it is at a rented hall where Trump controls who may enter, the answer is no.

If Trump wants to say charge the protesters in Chicago for criminal actions, they should fall on deaf ears. Assuming the rally was at a public forum, those protesters had a right to be there. I would prefer the anti-Trump people protest outside of the rally.

By the way, I hope you realize this long discussion on free speech is being read by three people. You, me and some person who stumbled on this blog.

Unknown said...

Sorry I didn't get back for awhile! Glad we had an audience. I agree with your final comment and really understood that to be your point from the beginning. It was really a debate about semantics and legalese and not against your point of view! It's been fun!