The First Amendment and Donald Trump

by Georgia Center for Opportunity | Mar 21, 2016

Like many observers, I was surprised and appalled by the events in Chicago a week ago, when Donald Trump’s campaign cancelled a rally in the face of concerted, well-organized protests both inside and outside the venue. Well, perhaps I shouldn’t have been all that surprised. It was a college campus, after all, and our students have become all too proficient and shutting down and shouting down speakers they don’t like. Donald Trump just received the same treatment campus social justice warriors have been meting out to a long and distinguished list of speakers. There’s nothing special about Trump in this regard.

But this isn’t another essay about the intolerance of campus activists or about the violence associated with Trump rallies, or even about the perfect storm that can be created when those two forces collide.

It’s about the First Amendment, which Trump invoked in responding on Twitter (apparently his favorite medium) to the events at and around the cancelled rally. Here’s his tweet: “The organized group of people, many of them thugs, who shut down our First Amendment rights in Chicago, have totally energized America!”

Some observers have been quick to point out that the First Amendment only protects speech against (some) government restrictions, not against private individuals or groups that interfere with your ability to speak your piece. Stated another way, neither side in a cacophonous shouting match is depriving the other of any First Amendment right, however both might in certain circumstances have a claim against government agents who sought to silence them.

So Donald Trump was speaking loosely on Twitter, which is par for the course, both for him and for his chosen medium of expression. But he actually was onto something that lawyers or pedants like me who sometimes try to sound lawyerly in front of a classroom all too frequently forget: a bill of rights, of which ours is an outstanding example, isn’t only the basis of an actionable legal claim. It is also meant to teach us which of rights are most important, which we should be most jealous of, and which we should respect in our daily lives as neighbors and citizens. In other words, a bill of rights can teach us what to cherish, both for ourselves and for others.

Let me explain by recurring to John Stuart Mill’s On Liberty. In the first chapter, Mill writes of a number of developments in “the struggle between Liberty and Authority,” the first of which was “obtaining a recognition of certain immunities, called political liberties or rights, which it was to be regarded as a breach of duty in the ruler to infringe.” Such a bill of rights—think of the Magna Carta as a prime example—historically preceded other measures to protect individual liberty, like institutional checks and balances and representative government. Indeed, even at the time of the American Founding there was no necessary connection between arguments insisting on the necessity of a Bill of Rights for the new constitution and those suggesting the advisability or necessity of judicial review. The former wasn’t thought necessarily to imply the latter as the principal vehicle of enforcement.

So what was, then, a Bill of Rights? It was an attempt to list the rights that the people regarded as most important to protect, by one means or another, from government encroachment. It was certainly addressed to those who exercised political power, warning them that such encroachments would evoke a response. But it was also addressed to the people, reminding them of the rights they should cherish and defend, so that any government attempt on them would indeed evoke an appropriately vigorous response. We’re not just supposed to wait for someone else to protect our rights, but, knowing what they are, we’re supposed to take it upon ourselves jealously and zealously to guard them.

The almost inevitable consequence of this jealous and zealous defense of rights is that it might be invoked in “technically” inappropriate contexts, against other citizens rather than against government. But this isn’t necessarily a bad thing, if it prompts, not litigation (all too often Trump’s first recourse), but a little self-reflection. Perhaps we can remind ourselves, or perhaps we can be reminded, that the rights we cherish for ourselves we ought properly to cherish for everyone. When I claim freedom of speech for myself, I should remember that my freedom is not mine alone, but everyone’s. As I demand that my rights be respected (in the first instance by government, but ultimately by everyone), so I should respect the rights of others.

One possible result of loose rights talk, corrected not by lawyers, but by (say) political theorists or historians, is an appreciation of the roles that mutual respect and civility play in facilitating the speech that makes self-government possible. Here both Donald Trump and his detractors have a thing or two to learn. For Trump, while it’s entirely appropriate to be indignant when someone interrupts you, it’s altogether inappropriate to threaten or encourage a violent response. (In fact, if you want to get technical or legalistic here, the kind of speech in which Trump engages in response to hecklers approaches incitement to violence, which is potentially actionable and is not protected by the First Amendment.) For the protesters and hecklers, a decent respect for one’s fellow citizen requires that you let the man speak. If you disagree with him, find your own forum, don’t try to hijack his.

Courts in any event should be our last resort, especially if we cherish our rights and demand that others respect them. Above all, we should make ourselves worthy of respect, or, if you will respectable. That ought to be the first lesson of all our rights talk: with rights come responsibilities.