For a bunch of flag-waving, thank-you-for-your-service-ing, Constitution-loving “real” Americans, there’s a lot about fundamental American legal principles that right-wing trolls flat out get wrong. As a lawyer, I find their takes on two such principles particularly irksome.
Freedom of Speech
Let’s set aside the gross hypocrisy on display when the right demonizes athletes kneeling for the national anthem to protest systemic racism but then lionizes the homophobic bigot refusing to bake a cake for a gay wedding. Every time Twitter or any other platform suspends a right-wing asshole for, well, being an asshole, Fox and Friends and the army of right-wing fanatics they purport to “inform” (including the current occupier of 1600 Pennsylvania Avenue) immediately shout from the rooftops, “You can’t do that! Freedom of speech!” And they spew the same thing when opponents of their backwards views challenge them, whether by calls for boycotts of companies supporting Republicans or even simply being publicly shamed for those backwards views. But that’s not what the constitutional principle stands for.
The First Amendment states that “Congress shall make no law […] abridging the freedom of speech…” Congress shall make no law. Not private companies or individuals. Through the incorporation doctrine these protections likewise have been extended to prohibit state governments from making laws that infringe on freedom of speech. Again, nothing restricting the behavior of private companies or individuals. And while I agree that people (and, begrudgingly under current interpretations of personhood, companies) should be able to say and support whatever and whomever they want – however repulsive their choices might be – the Constitution affords them no protection against the perfectly legal repercussions of those choices. You are entitled to say whatever you want, but you are not constitutionally shielded from the statements made or actions taken by others in response to what you say.
Every time a right-winger is indicted an angel gets its wings. Or at least I like to think so. And I know the feeling is reciprocated by Republicans when someone from “my side” gets charged, too. So it’s unsurprising that both sides chant “innocent until proven guilty” and “you’re denying them due process” when the target of an investigation or defendant in an indictment faces the onslaught of outrage when allegations are publicly released. There can be no doubt that the presumption of innocence forms the bedrock of western criminal law, as embodied in the Fifth and Fourteenth Amendments, and American courts must fiercely protect and uphold the principle. But public criticism is not a court of law.
Last I checked, Twitter does not have burdens of proof or rules of procedure and evidence. If it did, the internet no doubt would speed up dramatically for all of us due to the suddenly available bandwidth. But despite the urge to support faster downloads, I simply cannot fathom holding private platforms or individuals to the same standards as our criminal courts. Rather than claiming that public criticism of an accused denies them due process, you are perfectly entitled to respond in kind. See above re: freedom of speech.
Liberals certainly are not immune from wildly incorrect understandings of constitutional principles. But in the current political climate, in which the ruling party and its supporters basically hold that critical thought and reasoned discourse are tantamount to treason, right-wing trolls are far more prone to rail in support of constitutional principles that simply do not exist. If you’re going to claim the mantle of Making America Great Again, you would do well to understand the basic fundamental premises of its founding document.
This letter was submitted to the ‘Open Letters’ series. If you would like to contribute by writing a letter of your own, please contact Greg at [email protected]