Violence and Political Speech

I don't write the headlines

I don't write the headlines

My most recent CNN Column discusses violence in political settings. See Defend Donald Trump's right to free speech

I don't get to write my own headlines, ok?

Some good people think that sometimes being violent is ok. What they don't understand is that when we use violence in politics, no matter what, the bad people always win. They get to escalate the violence, feeding off of it, up to a point where the good people lose the stomach for it — or at least a critical mass of them lose the stomach for it.

Always.

And the bad people will always have more of a stomach for it, so in the war of attrition, they will win. They'll always be willing to bash you over the head with a truncheon for less of a reason, with more willingness to keep going long after your head looks like cherry pudding. They'll always go further on a macro level too, they're the bad guys because they're sociopaths.

No matter how right you are… if violence ensues and you win? You're probably one of the bad people. I don't care if you're protesting against the KKK or NAMBLA or the Black Panthers or ISIS or Nickleback fans.

That's kinda the point of my column:

Donald Trump finally learning about the meaning of free speech?

Other candidates might be bad for free speech once elected. But Trump is the only candidate to actually campaign to reduce our First Amendment rights. This is the guy who said, "There used to be consequences to protesting. There are none anymore. These people are so bad for our country, you have no idea, folks."

On Friday, he canceled a rally in Chicago, citing security concerns. Eyewitnesses reported that there were thousands of protesters outside, and hundreds demonstrating "in unison inside."

Even after it was canceled, there were reports of several outbreaks of violence in the streets after the speech and protesters celebrating by chanting, "We stopped Trump!"

And now, while everyone is trying to play the blame game, Trump ironically asks, "What happened to freedom of speech?"

Read the rest here.

Last 5 posts by Randazza

Comments

  1. Careless says

    Trump is the only candidate to actually campaign to reduce our First Amendment rights.

    Uhh, aren't Hillary and Bernie running on platforms that include doing that?

  2. Careless says

    I mean, here's Bernie's official stance: "That is why we must overturn, through a constitutional amendment, the disastrous Citizens United Supreme Court decision as well as the Buckley v. Valeo decision"

    And here's a quote from Hillary: "if necessary, I'll fight for a constitutional amendment that overturns it."

  3. Felix says

    @Careles — Hillary is also on record as saying, "You're going to hear all of the usual complaints—you know, 'freedom of speech,' etc." She's no friend of anything, let alone free speech.

  4. Ecinal says

    @Careless:

    I suppose you're one of those people that think there's something unseemly about a politician trying to amend the constitution so she can pass laws against criticizing her?

  5. David Lang says

    which is better,

    someone who has spoken against Free Speech who learns that it matters once they are impacted

    or

    someone who was a champion of Free Speech when they were the underdog who works to restrict it when they become powerful.

    I firmly believe the first is far better than the second. Which is why I am so horrified with what the political Left is doing nowdays.

  6. Careless says

    I claim the "nicely put"!

    Seriously, you've been on the internet for a while, why haven't you figured out that comments like that are effectively meaningless?

  7. Dwight says

    someone who has spoken against Free Speech who learns that it matters once they are impacted

    I'm not convinced the later has really happened, and wouldn't quickly become the former literally tomorrow. :p

  8. Dwight says

    I don't get to write my own headlines, ok?

    Good news, they changed headline to "Opinion: Trump's free-speech lesson". In my experience sometimes CNN has a few different headlines they will rotate through for the same story. They might even try to test to see who will click on what headline, in a sort of A-B testing and tailor a headline for a given known computer/phone connecting? That's just speculation though.

    On the op-ed itself *two big thumbs up*, with a small caveat, very important points. We really should be hearing more blanket talk of "violence is not acceptable". Same with that KKK rally last week, I just shake my head. Why isn't there more talk about this, about how that's just dead wrong.

    That caveat though; Your piece regarding this particular situation is based not just on that solid principle but also on two assumptions:
    1) That Trump canceled the rally for actual security concerns rather than a desire of not wanting the optics of hundreds of people, a meaningful portion of the crowd, booing him for an hour or two. Bonus, he gets to play the victim card (oblivious to the irony of it all).
    2) That the true security concern was the threat of the protestors initiating violence. Of course once it got going then I don't really know it matters who threw the first [sucker] punch, a whole lot of people can get hurt, and maybe that even ties into #1.

    I'm not saying these both couldn't be true, it is entirely possible that the SS detail (because it apparently wasn't the police, since they weren't in the decision loop) spoke up in the vein of "holy crap on a stick, I don't want to be part of this gong show going sideways, people could really get hurt here". Still they strike me as rather dubious assumptions to be made.

  9. Marzipan says

    Dwight's concerns about this piece mirror my own. My understanding is that both the police and Secret Service were surprised at the cancellation of the Chicago rally, which gives lie to the candidate's assertions that he contacted law enforcement about cancelling it. Rather, it strikes me as a preening prevaricator's puffery, designed to self-aggrandize instead of convey facts.

    Because I find his assertions false about contacting law enforcement, I also judge them false that violence was threatened. Again, I assume he was instead frightened about the massive, unmistakable outpouring of disapprobation that hurt his histrionic, narcissistic fee-fees rather than anyone bodily.

    Free speech can be vigorous, but I have yet to see believable indications that the protestors were inciting or initiating violence. In fact, the footage I've seen shows many of them locking arms and flashing peace signs while people with the candidate's signs yell and gesticulate furiously.

  10. repsac3 says

    Violence (or vandalism) in response to (or as a part of) political speech is never justified and those who commit either deserve to be prosecuted.

    Using words–whether vocally or visually–for the most part shouldn't be. Obviously some speech behaviors are more acceptable than others. Silently wearing a t-shirt or holding a sign or banner in opposition is less intrusive than making noise. Applauding (or booing) as part of a crowd (the crowd) is better than shouting slogans in opposition while a speaker is talking…especially if you're the only one doing so. While some of these things–and perhaps all of them, according to Trump's people–may warrant removal from an event, none should be criminal.

    I'm from the school of thought that says loud, disruptive protest belongs outside, whether it's CodePink at a senate hearing or tea partiers shouting down their House member at a healthcare town hall circa 2009, …or even at a Trump rally. But it shouldn't be illegal or immoral to disagree, even if you make noise doing it.

    I sometimes worry that pieces like this defending speakers and their free speech against those who would disagree with them or don't believe they deserve the podium they're using don't give enough credit to the free speech of those who make their disagreement known.

    While I'm not in favor of shouting down or drowning out a speaker with whom I disagree inside the venue once their speech is happening, I also value those outside saying the person doesn't deserve the honor of speaking at this venue (or my portion of the campus entertainment fee, etc). While I'm all for speech, I don't believe that that means silently accepting someone whose speech I find ugly. At the very least, I reserve the right to say I find their speech ugly, even outside the venue at which they're speaking. Protest is free speech, too. (And generally, speech more in need of protection than any coming from behind the podium inside a venue, I might add.)

    And yeah… I think there's a lot of merit to the idea that Trump wanted to avoid having that many people visually and vocally disagree with him at his Chicago rally…and avoid having the media videotape and otherwise report on how his supporters would likely react to that much dissent.

  11. Mikey Mike says

    Yep. We should defend Trump's right to free speech, even when he won't defend ours.

    *Especially* because he won't defend ours, really. That's how we show we're better than him.

  12. Dwight says

    Marzipan,

    Rather, it strikes me as a preening prevaricator's puffery, designed to self-aggrandize instead of convey facts.

    You dare besmirch the man's impeccable sincerity? I implore, he is no liar!

  13. Czernobog says

    Marc, you've either managed to confuse yourself halfway through the article, or there are facts I'm not aware of that you're assuming all your readers know (it's a possibility, I'm not living in the U.S.)

    1. Trump has a right to hold political rallies without the threat of violence.
    2. People who oppose him have a right to protest outside those rallies without the threat of violence.
    3. The KKK or whoever the scum du jour are, also have a right to hold rallies without the threat of violence.
    4. People who are vocal about the rights of trump opponents should also be vocal about the rights of racists.

    So far so good.

    But you conclude by stressing again that Trump has a right to hold rallies without the threat of violence, to which I ask, was he ever really threatened with anything other than vocal dissent?

  14. Sami says

    Okay, wanting to overturn Citizens United is not the same thing as "curtailing free speech rights", unless you actually, genuinely believe that spending money is the same thing as free speech, and that corporations are people, and rich people just matter more than The Poors, and that the hideous monetary corruption of American politics is somehow a good thing rather than the thing that is destroying everything that was ever good about that once-great nation.

    Meanwhile, the only caveat to the point about violence in politics I'd offer is that if violence happens but you are not responsible for any part of it, you still win.

    When the Civil Rights movement staged peaceful sit-ins and marches and got seven kinds of shit beaten out of them, but they themselves did absolutely nothing violent, the bad people didn't win on that one.

    If it becomes a brawl, even if you didn't throw the first punch, yeah, you lose.

    Sometimes losing is your only option, but America isn't there yet.

    Yet.

    America is currently undergoing a test, I think. The would-be fascists are more prominent than they've been since Henry Ford and Prescott Bush were openly pro-Nazi. If America were France, there'd have been few bloody riots and maybe some barricades in the streets by now, but that's not how you roll.

    Last time the two-party system broke down, the Whigs fell apart and produced the Republicans, and from the outside, at least, it really looks like the Republicans are reaching a similar point of internal unworkability.

    I just hope your next great political party can be organised without an accompanying bloody civil war.

    I'm just hoping that this time the massive political convulsions don't

  15. asdf says

    I am not defending Donald Trump or his rhetoric.

    but — the rally was disrupted by Trump opponents(OWS and Bernie fans, apparently) who coordinated on MoveOn.org to disrupt the rally by any means necessary.
    And they did.

    So we have:
    1) Politician makes speech Marc Randazza and others doesn't like (Violence is OK!)
    2) Politician's opponents coordinate and violently disrupt rally.
    3) Politican's opponents and Marc Randazza say "Free speech! Violence! Politician we don't like!"

    Get it?

    Yes, Trump's words are dangerous.
    But in this episode, it is his opponents doing what you claim to fear, suppressing speech with violence.

    Jazz has a good take at HotAir.

    Free thinking adults are free to ignore or condemn rhetoric they disagree with. When they decide to gather up tens of thousands of people to take to the streets and bust the joint up, that’s not something which was traditionally blamed on a speech given days or weeks before.

    http://hotair.com/archives/2016/03/12/conservatives-align-with-black-lives-matter-in-rush-to-find-blame-for-chicago-protests/

  16. asdf says

    Marc, I want to note: in your article's conclusion, you make the same point I'm making (Defend Trump's ugly speech).
    But in the body of your article, you only cite violent protests of "the other side" in other cases, but not this case in particular. If I'm misreading you, then I apologize.

  17. asdf says

    Marc, OK, I apologize.
    Upon further rereading, I found it. My comprehension is apparently not good this early.

    Even the most ardent anti-Trump among us should lament that a political speech was canceled due to fears of violence.

  18. Richard Smart says

    "And no matter how right you think you are, you are never so clearly right, never so without fault, never so pure, that you have any moral authority to shut down the other side with violence."

    Wonderful. I mean it, I really do. But. How many of your fellow Americans really believe that, deep down?

    "When you do that, the eventual result is that he who brings the bigger guns will win the debate."

    Or the biggest mob. It's not a debate when a losing side doesn't see the point in talking any more.

    Even the US has seen its share of armed violence in the streets. Perhaps especially the US, given the prevalence of firearms. Not that the US is uniquely sinful. But there have been union riots, conscription riots, Bund riots, Klan riots, other violent political riots, since the foundation of the union; I'm sure you yourself can multiply examples.

    Of course, none of that really threatened the Union or its constitution, because generally only one side was a mass movement. Workers' bosses could hire Pinkerton guards and other armed thugs, true. In comparatively small numbers. Did that really do them any good in the long run?

    To properly suppress your exploited heaving masses you have to recruit your own masses and make sure they hate enough to beat your political enemies to a pulp. Until now, the US hasn't suffered from both sides being prepared to resort to force. That wasn't true of Europe, say. Recall what the communists and nazis did to each other in Weimar Germany.

    In the sixties even gay rioters in New York eventually trashed the cops harassing them. The cops were armed. The gays weren't. Nor were the students inserting flowers into the barrels of the National Guardsmens' rifles. And when the guards did shoot the students, it turned out the students won the argument, even posthumously. In the future such outcomes are less likely, because like depression-era European mobs the rioters have no other hope. It won't matter if the élites are polite, well educated, committed to the rule of law, and on the whole fit to rule. Where a substantial fraction of your nation has no hope – and I would suggest that fits around half the population of the US – they will overturn the rule of the élites. You will know it has reached that point when a future demagogue organizes a Schutz Staffel or Phalange or Action Directe of his own, backed by masses of angry, disadvantaged and disempowered former middle class voters, for whom the rule of law means the rule of élites.

    "That is not what America is all about."

    Um…

  19. David Lang says

    @Sami

    Individuals are allowed to contribute, why are individual working together not able to contribute (That's what a Corporation is)

    That said. I would be willing to prohibit corporations from contributing, if we also prohibit unions and all other organizations from contributing as well.

  20. Andy says

    @David Langley.

    The union I am a member of has a political fund equal to 10% of the subs of participating members (payment of the fee is optional) and I have chosen to join the union and contribute. That fund is used for multiple campaigns.

    The company I work for is somewhere that I can earn a living at and I don't necessarily agree with the political views of those who are able to decide on how contributions are made. I can vote to change the head of the union, not the head of the company.

    Stopping corporations spending money on elections isn't stopping the employees having a voice, it is stopping those with the power to make the decision unilaterally using their employees numbers to follow their own star ant not reflecting the views of the employees.

  21. David Lang says

    @Andy, the Corporation is an association of stockholders, not employees. It's the stockholder's money that is being spent, not the employees money. And the stockholders can vote out the company leadership.

    While your union may make the political contribution voluntary, that's not true for many unions.

  22. GreenW says

    from the CNN story:

    When you do that, the eventual result is that he who brings the bigger guns will win the debate.

    That is not what America is all about.

    [troll-bait]
    Isn't that why we passed the second amendment, to trump the first?
    [/troll-bait]

  23. David Lang says

    @GreenW

    While you list it as troll bait, the 2nd amendment was specifically to prevent the government (and therefor the people currently in power) from having a monopoly on guns. It's much easier to consider using them if you know the other side won't have any.

  24. Czernobog says

    @David Lang

    Since the stockholders can still donate individually, why is it necessary foe them to be represented by the corporation?

    The only answer I can think of is that it isn't. Donation through corporate funds doesn't serve the shareholders as a whole, but simply increases the comparative power of majority shareholders and majority directors.

    Additionally, since shareholders can still donate as individuals, placing a limit on the contributions of corporations or unions doesn't actually curtail their freedom of speech.

  25. Marzipan says

    Dwight, I could get behind calling it a bloviating bullshitter's buffoonery, and I agree with the thrust of the article you posted. He seems far more interested in making the truth unknowable than in outright deception. The p's just alliterated more easily last night.

  26. says

    @Ecinal–

    I can respect Hillary trying to abridge the free press clause by Constitutional Amendment even if I disagree with her. But she has also advocated getting her way by remaking the Supreme Court.

  27. Echo says

    How many of your fellow Americans really believe that, deep down?

    When I see vermin waving a Soviet flag (in #CURRENTYEAR!), throwing rocks at people, blocking ambulances, holding up "Destroy AmeriKKKa!!!" signs, and shooting mac-10s in the air to celebrate…

    Yeah, I'm pretty sure they're putting violence on the table. You don't wave that flag or do those things if you're committed to peaceful protest.
    How are Americans not seeing the pictures and videos from the violence at the rally? Do they just not exist because CNN isn't looping them 24/7?

  28. Echo says

    @JDE

    The Chairman of the Progressive Labor Party, according to the News, dismissed freedom of speech as “a nice abstract idea to enable people like Shockley to spread racism… Few faculty members spoke out. Far from echoing the old indignation called forth by the Wallace episode of 1963, the editorial voice of the college paper divided the blame, according the disrupters only a small share, citing repression elsewhere as justification for disrupting a speaker at Yale

    Wow. If you look closely, you can almost see the exact second the left was eaten alive by its own cancer.

  29. Jerry says

    Hillary and Bernie are both running on a promise to overturn the most important 1st Amendment case of our time – the Citizens United decision. Bernie has even gone as far as introducing a Constitutional amendment to strip the right to political speech to all except the very rich, the politicians and their parties.

    And Marc Randazza thinks Trump being upset at libel case law is a bigger issue? Bear in mind that the Citizens United case was about the government banning a movie because it contained criticism of a political candidate – Hillary Clinton!

    I'm just flabbergasted over this post on a blog that is normally fiercely defensive of 1st Amendment rights. And frankly I'm terrified of the real possibility that Bernie or Hillary will appoint the one justice needed to gut the 1st Amendment right to free speech. Had the CU decision gone the other way, and ruled that corporations are not protected by the 1st Amendment, there is literally nothing preventing the government from censoring the New York Times, MSNBC, Fox News – or even this very blog.

  30. Jerry says

    One more thing – Citizens United was formed specifically for political activism by like-minded individuals. It was not at all like a trade union or a manufacturing corporation owned by stockholders, which may advocate positions shared by only a bare majority or even a minority of its members or stockholders. So that analogy by some here falls flat.

  31. Anon Y. Mous says

    Always.

    Sigh. You truly are a dipshit. When Trump seeks to shutdown the "protesters" who are disrupting an event he organized and paid for, he is not suppressing freedom of speech. He is defending his freedom of speech. If the protesters want to demonstrate outside the event, fine, nobody cares. But, if they want to disrupt the event inside, they are thugs who need to be dealt with.

    If police (or security) remove them forcibly, are the police violently suppressing freedom of speech? Of course not; they are protecting freedom of speech by removing those who are trying to shut it down. And, in this country, we don't have to stand by powerlessly waiting for the police when someone is attacking us. We have the right to defend ourselves.

    If Trump calls on the people – who came to hear him speak – to remove those who seek to shut the event down, they are acting in the stead of the police, to protect their own freedom to listen to the speech they came to hear. They are the defenders of freedom of speech, and violence, if it is proportional and limited to what is necessary, is completely justified.

    Am I, or anyone, advocating that the disruptors be shot on the spot? Of course not. But if they are roughly grabbed and removed from the event, that is as it should be.

  32. Anon Y. Mous says

    The name calling was unnecessary, and I apologize. However, your article claims Trump is in favor of freedom of speech "ironically". You use the following Trump quote to make your point:

    There used to be consequences to protesting. There are none anymore. These people are so bad for our country, you have no idea, folks.

    Trump, in that quote, was talking about the people actually disrupting his events, not just people protesting outside. Now, you may be patting yourself on the back for how you carefully lawyered your piece to give the impression that Trump was in favor of stopping legal protests. I suppose he asked for his words to be twisted when he didn't carefully make a disclaimer in his comments. You did not provide a link in your piece to his quote, so here is one at Politico.

    It is clear in context that in that quote he was lamenting how the people who are shutting down his events need to be stopped, not that any and all forms of protest need to be shut down.

  33. says

    @Jerry– I think Hillary trying trying to muzzle the press by enabling Campaign Control and Trump trying to muzzle speech and press through meritless libel suits are *both* big issues. Sort of like a choice between Brezhnev and Mussolini.

    Incidently, Brezhnev was not a bad guy, a conciliator rather than a bully. He was a fan of Vladimir Vysotsky. Unfortunately, some of the people he had to conciliate included the Party orthodox and the KGB.

  34. Nullifidian says

    Jerry:

    Had the CU decision gone the other way, and ruled that corporations are not protected by the 1st Amendment, there is literally nothing preventing the government from censoring the New York Times, MSNBC, Fox News – or even this very blog.

    Because obviously the 1st Amendment contains no provisions guaranteeing the freedom of the press. It just completely slipped the Founders' minds. It wasn't until there was a decision on a completely separate matter of corporate campaign spending that the freedom of the press was belatedly guaranteed.

  35. Jason K. says

    @ GreenW

    "[troll-bait]
    Isn't that why we passed the second amendment, to trump the first?
    [/troll-bait]"

    I wouldn't say to trump the first, but to give protection to it. As has been seen time and time again, people in positions of power will almost inevitably use that power to try to suppress things they dislike. So that which wields the power, controls the discourse.

    Where does power come from? When push comes to shove, power is the ability to apply violence. In modern times, that means that which can bring to bear the most/best weapons has the power. Mao was right: "Political power flows from the barrel of a gun". So that which controls the guns, controls the discourse. The 2nd amendment is an attempt to ensure that no single entity can consolidate control over the means to violence, thus keeping any single entity from controlling the discourse.

  36. Jerry says

    @ Nullifidian: "Because obviously the 1st Amendment contains no provisions guaranteeing the freedom of the press."

    A meaningless provision if corporations have no 1st Amendment rights. Under Bernie and Hillary's interpretation (and unfortunately 4 SCOTUS justices) only individuals have the right to freedom of the press. Therefore the New York Times is fair game for censorship.

    "the press" in the 1st Amendment, btw, is not a reference to the news media or professional journalists. It means, quite literally, a printing press and it matters not who is using it.

  37. Derrill says

    If The Daily Show is to be believed, Trump lies more (more often?) than your standard presidential candidate, so I don't really find it surprising that he'd have lied about contacting law enforcement.

  38. birdboy2000 says

    I completely agree that violence should not be used to shut down political rallies – but I ask again, where's the violence in this context? All I see here is someone else treating a peaceful protest as an impending riot to justify the suppression of said protest. This isn't some brave freedom fighter asking only for the chance to speak, it's George W. Bush wanting "free speech zones" lest other people criticize him.

  39. Dwight says

    The main difficulty with Citizens United's isn't the "corporations are people" (and that isn't exactly what it reaffirms anyway, I'm pretty tired of hearing that catch phrase), and loath that approach to it. :(

    The main difficult with it is severely narrowing the concept of "corruption" to very explicit, temporarily tightly tied quid pro quo (seemingly more limited definition than even found in criminal law) for considering if the rationale met strict scrutiny.

  40. says

    @ Nullifidian, Jerry– The "press " in the First Amendment makes the most logical sense as the mass dissemination of "speech" out of earshot of the speaker. As such, it applies not only to 1787- vintage hand-presses, but also to radio, TV, and the Internet; it contains no suggestion of licensing legitimate press outlets

  41. Richard Smart says

    Dear Jerry,

    Hugo above has it exactly right.

    Even as early as the signing of the first amendment, "The Press" meant much more than a simple printing press. It also included the gentlemen of the fourth estate.

    Oscar Wilde thought Burke coined that phrase. Maybe it was Carlyle (in"Sartor Resartus"). Regardless, it shows that even as far back as the turn of the 19th century, protection against prior restraint was not simply for those operating presses – who were mostly just bookbinders – but those who publish by any means, ie. journalists. That tradition is upheld by SCOTUS decisions throughout US history, such as NY Times v Sullivan.

    I notice how vehement you are in your support of the notion that corporations – of any kind, not simply joint stock – should have rights just like 'natural persons'.

    That particular doctrine might be the current view of SCOTUS, but it was not always so, I was taught that the pendulum had swung at least twice between the two extremes. All the same, I'm no expert on US law: Mr Randazza might help there. But I do know that the doctrine that corporate persons have freedom of speech arises from the way courts interpret "person" in the fourteenth amendment.

    When I read the text, it's hard to see how SCOTUS can derive a collective right to free speech from the plain language of the fourteenth amendment. It seems pretty clear that "person" nearly everywhere there means "natural person". I'd expect that stretching it to mean "legal person" violates what a guest lecturer called 'the dead hand of originalism', except that the supporters of the notion always seem to be originalists.

  42. David Lang says

    @ Czernobog

    > Since the stockholders can still donate individually, why is it necessary foe them to be represented by the corporation?

    the same can be said about union members

    The key thing in CU was to note that if people have the right to do something as individuals, they don't loose that right when the group together into an organization.

    As others have pointed out, CU was not a company with some unknown percentage of the stockholders supporting a position, it was an organization put together by people to explicitly agreed with the position they were supporting for the purpose of supporting those positions, and were doing it with their own money.

    This is far simpler (and more obviously allowed) than union bosses or corporate executives using their organization's money to support something. But if a corporation/union is allowed to donate to a charity or do anything outside of directly supporting the organization, why should they not be able to support political groups they favor?

  43. Richard Smart says

    Did I say at one point to expect blackshirts, brownshirts and redshirts? 'Cos we're off to the races:

    "Donald Trump on Sunday threatened to send his supporters to disrupt the campaign rallies of Democratic presidential candidate Bernie Sanders, whom he has blamed for the chaos at his own events."

    In fact, it's not like he wasn't provoked. I seem to recall 'democratic' politicians telling their supporters to disrupt Trump. But dear God, doesn't anyone remember the last century at all?

  44. Dan Weber says

    If someone thinks Citizen United is about "corporations are people," just nod at them politely and go find an adult to talk to.

    The same Supreme Court that upheld CU ruled unanimously that corporations do not have the rights that people do. Check out FCC v ATT. It's fun for two reasons:

    1. You get to say "F C C V A T T"
    2. Just read the last page. It's great and shows that the court has a sense of humor.

    And Marc, your op-ed? Beautiful. The response to Trump is to vote against him and convince his voters to defect.

  45. Jerry says

    @ Richard Smart – "Even as early as the signing of the first amendment, "The Press" meant much more than a simple printing press. It also included the gentlemen of the fourth estate."

    Of course it includes them, however they have no more 1st Amendment rights than does anyone else. And the SCOTUS has never ruled that the news media has any more 1st Amendment rights than anyone else, in fact they were very leery of doing so because that would open an entire new can of worms. Specifically, what is the definition of a journalist? Especially these days, is someone live streaming an event to YouTube a journalist? Is a blogger a journalist? Are the commenters on this forum journalists? It is far easier, and simpler, to just acknowledge that the 1A applies to everyone equally, journalists do not have any more 1A rights than anyone else therefore there is no reason to try to define them.

    If Bernie and Hillary had their way, of course, any journalist who worked for a corporation would have far less 1A rights than they would on their own.

  46. David Lang says

    @Jerry

    actually, as I understand it, they want it to be that Journalists working at approved corporations would be protected, everyone else (working at a company or not) would not be.

  47. David Lang says

    @Jerry

    actually, as I understand it, they want it to be that Journalists working at approved corporations would be protected, everyone else (working at a company or not) would not be.

  48. NickNack says

    @Marc Randazza ..

    "They acted with as much beastly violence as the awful Trump supporter who allegedly sucker punched a protester."

    In the whole article, the only person you add the "allegedly" tag to is the guy SEEN on the video sucker punching a protestor. The other folks transgressions are somehow different? Has everyone else apparently already been found guilty?

    If the video of John McGraw landing a vicious sucker punch on a guy only warrants an "allegedly" then the other incidents are, as best "alleged" also.

    Not the subtlest of word selection. Somehow you equivocate a guy who demands a freaking pledge of loyalty from attendees and calls for protestors to be roughed up to Sanders because Sanders doesn't say Trump is free to urge his supporters on to violence?

  49. Richard Smart says

    Dear Jerry,

    You did say that '"the press" in the 1st Amendment, btw, is not a reference to the news media or professional journalists. It means, quite literally, a printing press and it matters not who is using it.' Yet you say now that "Of course [the press] includes [journalists]." On the face of it, you contradict yourself.

    Nor is it true that "the press" has no special rights under the first amendment. The text of the amendment explicitly prohibits "abridging the freedom of speech, or of the press" (and Madison's original draft went even further in clarifying that).

    I didn't want to imply that corporations or institutions have freedom of speech greater than natural persons. But freedom of the press is not surplusage; it can't be the same thing as freedom of speech. If it were, there would be no need for the separate mention of the press. Generalia specialibus non derogant

    Publication is often by way of some institution. It might be a journalist publishing his opinion in a newspaper which employs him. In principle any person could buttonhole the journalist and tell him interesting things, but it's far easier for a credentialled journo to get published.

    From precedent, a free press means a person can has a right not only of expression, but of publication. And while a specific journalist has been obliged to testify before a grand jury, not only was that a 5-4 split decision but one of the concurring judges said it was a balancing exercise, which means that journalists – "the press" – might be able to claim such a right on a different set of facts.

    By the way, it's not true that SCOTUS has steered clear of adding new types of media to the definition of "press". In fact there is case law that institutional media isn't the only kind of 'press'. Last I heard, the governing precedent – a 1938 case, Lovell – was to the effect that you can't arbitrarily subject a "publication which affords a vehicle of information and opinion" to "license and censorship". Publication in that case was hand distribution of leaflets, not institutional media. Likewise, the internet is most surely a vehicle of publication, and accordingly benefits from first amendment protection.

  50. Neto says

    Excellent, Mark.

    You echoed my thoughts on the whole issue.

    Unfortunately, the rabid fan bases of every "team", almost tribalistic, do not care one iota about applying the same rules. It's all about irrational loathing.

    I hope it plays about better than it has so far with columns like yours, fighting the good fight (I've tired myself trying to oppose the violence in anaheim, people just want to see those they hate physically attacked, it seems)

  51. says

    and sometimes your editor adds in "allegedly" to a sentence where you didn't originally put it yourself. And then, you have a choice — say "fuck off, I'm keeping 100% of my editorial integrity" or you say "I'll take 99.5% of my integrity to get my word out."

    Chill the fuck out, bro.

  52. Danielle says

    I have a question for you. Do you recall at the very beginning of all of this a muslim woman who sat at a Trump rally with a shirt on saying "I am Muslim…." an all I want is peace, or something to that effect. She did NOT say a word but sat in his audience. What was the legality of Trump spotting her and treating her like a criminal for wearing a shirt that he didn't like? I believe your memory can't be that short that you don't recall the incident. Please tell me what law gave him the right to suppress her from attending this rally given the facts that she never uttered a word to protest? Trump seems to think that he is above the law from everyone else in your country? He even had the audacity to say he could probably shoot someone and still have a big following. Something is seriously wrong with the mental capacity of this candidate.

  53. JWH says

    Did the Chicago protesters actually threaten violence? Or did they plan such disruptive protests that the Donald decided not to speak? It's not clear to me from the coverage.

  54. Trump says

    @Anon Y. Mous

    Am I, or anyone, advocating that the disruptors be shot on the spot? Of course not. But if they are roughly grabbed and removed from the event, that is as it should be.

    Has anyone? Well Trump indulged the crowd in fantasizing [out of proportion] punching them in the face, lamenting for the good ol' days when a protestor would "be carried out on a stretcher, folks."

    Guess what followed that up? Needless sucker punch (actually looks more like an elbow) in the grill of someone being lead out….and the next day they went on camera to not only say it felt good but then go on to say "next time we see him, we might have to kill him."

    Top it off with Trump indulging in fantasies of him strolling out of his office in NYC onto the street and shooting someone. Aggrandizing violence, fetishizing it as "strong"? How about his comments on Tiananmen Square protests, er riots? o_O

    P.S. To be clear I'm not saying it was cool to Xerg rush into his event. I think that's a bad idea ultimately. Even if done is a relatively peaceful manner.

  55. says

    If it is a private event, he can throw out anyone he wants.

    "Can" is different from "should." I think he should have allowed her to stay. On the other hand, anyone who interrupts the speaker should be thrown the fuck out, no matter what the speech is about… even interrupting a Westboro Baptist Church rally should be met with you getting booted from the venue.

  56. Jerry says

    @ Richard Smart – "You did say that '"the press" in the 1st Amendment, btw, is not a reference to the news media or professional journalists. It means, quite literally, a printing press and it matters not who is using it.' Yet you say now that "Of course [the press] includes [journalists]." On the face of it, you contradict yourself. "

    Where is there a contradiction? I said it matters not who uses the printing press, that means Joe Blow in his studio apartment or a reporter for the New York Times. Both have equal rights under the 1st Amendment. "The press" meant just that – a printing press, not institutionalized journalism. Obviously the intent of the amendment was to protect not only the spoken word ("freedom of speech") but the written word as well per the technology of the day, so in that spirit it is also understood to also apply to broadcast speech and digital speech. In fact today 1st Amendment rights are often referred to as "freedom of expression", in order to cover all forms as was obviously the intent of the amendment.

    But never, ever has the SCOTUS found that journalists (professional, accredited, or otherwise)had more 1st Amendment rights than anyone else. They realized the problems that a 2-tiered system of 1st Amendment rights would pose, first and foremost defining what is and what isn't a journalist. And as technology and mass media advances the line only gets more and more blurry and opaque.

    Thus, the press freedom in Bernie's proposed amendment as written applies only to individuals, other parts of the amendment make clear that any corporate journalism has no protections at all.

    You might also want to read Ken White's take on this: https://popehat.com/2012/01/19/a-question-for-critics-of-citizens-united-did-corporations-have-a-right-to-join-the-sopapipa-blackout/

  57. desconhecido says

    "If it is a private event, he can throw out anyone he wants. "

    Is that literally true?

    At a private event, if someone is asked to leave by the sponsors of the event, the person can either leave voluntarily or become a trespasser. In the case of a trespasser, does the sponsor have the authority to "throw" that trespasser "out" or must the sponsor request that a duly licensed law enforcement/security officer do the throwing? Certainly the sponsor does not have the right to enlist other non law enforcement attendees to physically remove a non-violent trespasser.

    Point is: people attending Trump rallies who are not law enforcement are probably committing crimes if they try to physically enforce trespass laws against non-violent protesters whether the protesters be silent or noisy, raucous or calm. Law enforcement officers present should enforce the law uniformly against protesters and fans who commit assault.

  58. Jerry says

    @ desconhecido – Of course Trump can kick anyone out of his rallies he pleases, and it doesn't have to be a law enforcement officer to do it. If you doubt that just go to your local bar and dare the non-LEO bouncer to try to throw you out.

    And I don't know about other states but in Illinois, where I live, anyone can make a citizens arrest for any crime that is not a municipal ordinance violation and use whatever force is necessary (short of deadly force, which has its own rules) to do so. So if you see someone snatch a woman's purse you can chase them down, tackle them, and hold them for police and you have not committed a crime.

  59. Dwight says

    @desconhecido

    For my private function I can dispense the GTFO myself or via an assignee of my choice. Often the police officers you see at these functions aren't operating in an official capacity anyway, they are freelancing for cash. It is just a lot easier and generally safer to get have the pros handle it as:
    1) They have the training for it. Nominally they know what how much force is needed, hopefully not going past that.
    2) They know how to talk in court and to official police to cover their ass, and by extension, yours. For better or worse, they'll also have their testimony treated at a higher value in the courts. Yes that is "wrong" but there is no rational denial that in practice it is so.
    3) The uniform (most jurisdictions allow their officers to wear these while freelancing) puts people to be ejected in the frame of mind that it is lawful. Thus less likely to do stupid shit.

  60. Monti says

    This whole thing sucks. I am reaching the point where I think that everyone involved are assholes.

    BUT:

    As rotten as these rallies and protests get, I can't say anything other than "everyone has a right to speech no matter what they are saying" without being guilty of intellectual dishonesty. And that kinda pisses me off. It would be much easier to be a hypocrite about this.

    *SIGH*

  61. joshuaism says

    I generally do not agree with The Federalist but I believe that this article presented the argument in much better form without blurring the distinction between Trump protesters and the "protesters" that attacked that KKK "rally".

    Trump is running from the supporters that he has incited to violence, not from imaginary violent protestors. He has reaped what he has sown. If he wants to avoid violence at his rallies then he needs to disavow the use of violence, but that is only a practical consideration. He is free to say whatever he wants, he just cannot expect to avoid the consequences of his speech.

  62. ObliviousScout says

    I get annoyed at articles that try to lay a pox on both sides, because they mostly end up defending the indefensible.

    Yes, we agree violence that shuts down debate is deplorable. But this blog has rightly mocked other groups when they’ve used made-up (or indeed self-created and self-fulfilling) threats of violence to shut down debate. Trump and his supporters are overwhelmingly the ones using or threatening violence (or often the court system) to shut down dissent. I thought on this blog we agreed free speech does not confer the right to speak free of criticism—indeed it protects the right of those protesting your speech.

    Given that the Chicago PD and Secret Service were surprised by the cancellation, I (like Dwight and Marzipan above) have doubts about any threats Trump received, other than the threat of a boisterous and loud protest. I'm not ready to defend a known censorious asshat for being too chicken to handle a crowd of people who disagree with him. In any other context this blog would mock someone using made-up claims about potential violence to demand a "safe space" free of opposing views. I won't pretend that's defending free speech now.

  63. Marius Meyer says

    @ObliviousScout (and others)

    Three preliminary things please: 1. I am new here (I think this may be only my 4th comment here) so please be gentle. :) 2. IANAL also. 3. English isn't my first language so I sometimes miss out on nuance and tone in the more complicated article comment theads here (so sorry if I misunderstand you).

    What I think:

    This is how I perceived and understood what I think the point is in what Marc wrote (PLEASE NOTE: I could be totally wrong with my interpretation).

    1. Everyone should have freedom of speech, no matter what they say when using that speech.
    2. Nobody should have violence done to them for speaking or trying to speak.
    3. Here is a case where the one patry is doing the very things we decry here: Trying to silence others with threats of violence and then they go complaining hypocritically about their freedom of speech when something like that happens to them.

    So the thing that we should be doing is that we must codemn violence and/or attemps to stifle someone's their speech on both sides. Even if they will not extend others those same courtesies, we must defend their right to speak because we are (or at least we should be) better than them in the way that we stick to our prinicples.

  64. Richard Smart says

    Dear Jerry,
    You ask "Where is there a contradiction?" Consider your use of the word 'literally'. Better yet, ask someone else about it. That word does not mean what you think it does.

    And yes, I have read Ken White's post, saying in particular that "entities — corporations — are vehicles for human activity, including expression". It's a truism which obscures the fundamental objection that corporations are not in fact natural persons and have only a subset of the rights of natural persons, which is why the US Supreme Court has swung away from assigning fourteenth-amendment rights to corporations – and back again.

    Expect further swings in future. Specifically, the fact that SCOTUS currently views "Citizens United" as good law doesn't mean they always would have, nor that they always will. That was, if you recall, a split 5-4 decision.

    US citizens may or may not feel "Citizen's United" is a good thing. I'm not a US citizen, but if asked my opinion I'd recall the objections of the dissenters: that it enables powerful heads of corporations – who are natural persons – to warp the US political process beyond anything the founding fathers intended.

    Please recall my earlier words: "I didn't want to imply that corporations or institutions have freedom of speech greater than natural persons", although the historical position of SCOTUS on that point is not quite so absolute as you assert. "Citizens United" for example can be seen as an example of SCOTUS recognizing the special status of the "media" – the majority felt the media needed to be 'protected' from censorship.

    I'd nonetheless tend to believe, not having been brainwashed from birth, that there's nothing sacred about your constitution. It seems perfectly reasonable for Ms Clinton to want to amend the constitution (pace Ken White) to limit spending by a moneyed superclass, whose power has increased, is increasing, and ought to be diminished. She was after all the subject of "Hillary: the movie," which provoked "Citizens United" in the first place. And if such an amendment proves to have evil consequences, I'm sure the US Supreme Court will cope.

    All that is irrelevant to my broader point that "freedom of the press" is not identical to "freedom of speech", your protestations to the contrary.

    Both freedoms apply to journalists like any other person; but only journalists were likely to take advantage of a right to publication represented by 'freedom of the press'. Now the internet has brought publication within reach of ordinary persons. The resulting SCOTUS conniptions are quite entertaining. It remains true that freedom of speech is not the same as freedom of publication.

    You can't reduce freedom of the press to a nullity. Not even SCOTUS can do that, strive though the current justices might.

  65. Piper says

    Marc – you should take issue with another Marc's article:

    In which Marc Thiessen argues that it's the protesters' fault for being assaulted. The answer to speech (especially Political speech in the USA) is not assault. It's more speech (which for the most part is what the protesters appear to be doing). Thiessen only seems to think that speech he agrees with should be protected… Ken White would probably agree too…

  66. desconhecido says

    As other commenters have noted, my understanding of the legalities of handling hecklers was, to be kind, incomplete. Many readers here probably already know this: Volokh has a couple articles on his site posted today which address these sorts of issues. I'm still not certain on all the details, but his articles help.

  67. David Lang says

    @Marius

    > 3. Here is a case where the one patry is doing the very things we decry here: Trying
    to silence others with threats of violence and then they go complaining
    hypocritically about their freedom of speech when something like that happens to
    them.

    the really funny thing is that I can't tell which side you are referring to here.

    Do you mean to be saying that Trump supporters are advocating violence and then being hypocritical, or that the protesters are advocating violence and then being hypocritical?

  68. King Squirrel says

    "I'll take 99.5% of my integrity to get my word out."

    SLAPP off!
    *sue sue*
    SLAPP off!
    *sue sue*

    The SLAPPer!

    The Clapper may turn off those pesky lights with a quick clap, but our new SLAPPer can turn down those pesky words you just don't need. Works best on average joes. Great at getting out those pesky class action fraud stains!
    And when applied directly to the editor, can even turn down the volume on the toughest first amendment lawyers!!

    Just keep SLAPPing(tm) and listen as your troubles fade away!!!

  69. says

    I take no issue with Thiessen. I actually agree with him.

    The answer to speech you don't like is more speech. But, the answer to a political rally you don't like is not to disrupt it. You get your ass out on the street and protest. Shut up in the movie theater. Shut up when grown ups are talking. This is not hard.

    I'm not ok with roughing them up, but I'm just fine with throwing them out. And, Thiessen has a point — you don't see roving bands of Trumpkins kicking the shit out of people on the street.

  70. JohnHam says

    The flat refutation of violence in politics is rather ironic given how this country was founded. I'm also going to assume you are generally in favor of the Civil War.

    Neither of which really bears on the points you are discussing, but the absolute nature of your statement does bring it into play.

  71. Marius Meyer says

    @David

    In this specific case I was referring to :

    1. The Trump side side being hypocrites
    2. We should condemn violence by either side
    3. Freedom of Speech should not be taken from either side

    (I know it more complex than this, but for purposes of this let's assume that there are only two sides involved.)

    I totally agree with your point: The funny (and interesting and weird and sad) thing is that we've seen this type of behaviour from almost everyone involved on all of the sides, so yes, the different "sides" can be used very interchangeably.

  72. Careless says

    Okay, wanting to overturn Citizens United is not the same thing as "curtailing free speech rights", unless you actually, genuinely believe that spending money is the same thing as free speech, and that corporations are people, and rich people just matter more than The Poors, and that the hideous monetary corruption of American politics is somehow a good thing rather than the thing that is destroying everything that was ever good about that once-great nation.

    So what you're saying is, you don't know what Citizens United was about.

    That said. I would be willing to prohibit corporations from contributing, if we also prohibit unions and all other organizations from contributing as well.

    But then you have to shut down the media reporting on politics/politicians.

  73. Careless says

    Since the stockholders can still donate individually, why is it necessary foe them to be represented by the corporation?

    Because, generally speaking, one person can't afford to make their own movie. Again, you don't know what Citizens United was about.

  74. Daniel Weber says

    If you want to argue for violence because we've gone to war in the past, be prepared for the other side to go to war as well.

    The vast vast majority of people, even those in marginalized groups, are way better off under rule-of-law than rule-of-war.

  75. Careless says

    It seems perfectly reasonable for Ms Clinton to want to amend the constitution (pace Ken White) to limit spending by a moneyed superclass, whose power has increased, is increasing, and ought to be diminished. She was after all the subject of "Hillary: the movie," which provoked "Citizens United" in the first place.

    Er, you don't see the contradiction here? the reason the movie was made by Citizens united instead of one rich guy is that it was a bunch of non-super wealthy getting together to make a statement they couldn't afford individually. And Hillary and Bernie want to ban people from being able to do that.

    And if such an amendment proves to have evil consequences, I'm sure the US Supreme Court will cope.

    Oh good, SCOTUS should just ignore the Constitution if Hillary passes a bad Amendment

  76. Elizabeth says

    I posted a link to your article on a private facebook group I'm in. It sparked some pretty thoughtful discussion, so thank you for that. It also outed some idiots in the group – one of whom insists that poor Drumpf is being physically attacked at every rally and forcibly "shut down." Another insists that it's our duty as human beings to violently attack/beat up Drumpf and his Stormtrumpers.

    Both have since been booted from the group to spout their crazy elsewhere. Again, you have my gratitude.

  77. ObliviousScout says

    @Marius,

    I fear Trump has effectively set a trap: using the words of free speech advocates even as he advocates limiting others' speech. Articles like this give him cover and respectability in that effort. Yes, we support the free speech of everyone, including those with whom we disagree. But that doesn't mean we give extra effort to every case that crosses our desk. Ken doesn't turn on the Popehat signal for everyone threatened by frivolous and cencorious litigation, but chooses cases that stand out and deserve extra assistance.

    Trump has been complaining about how "Political Correctness" has been hampering his "free speech." This flows from a common misconception that free speech means you have the right to speak without others reacting to what you say. (Naturally, his solution is to force everyone to say "Merry Christmas," which anyone with a brain should realize is the opposite of free speech.)

    Trump doesn't need our help protecting his right to speak: he's speaking plenty and drawing crowds. But with larger crowds comes the opportunity for more vocal dissent; that's always been a part of our loud, boisterous political process. He will use our help to expand an ever-wider zone where dissent is squelched. I would rather we focus on defending dissenters.

  78. Mr. L says

    the reason the movie was made by Citizens united instead of one rich guy is that it was a bunch of non-super wealthy getting together to make a statement they couldn't afford individually

    Don't forget that Hillary: the Movie was put together directly in response to Citizens United's FEC complaint about (essentially identical) issues with Fahrenheit 9/11 getting shot down. The pre-CU status quo was exactly the situation that its critics claim to want to prevent.

  79. DRed says

    Yeah, this is the free speech guy:

    2. No Disparagement. During the term of your service and at all times thereafter you hereby promise and agree not to demean or disparage publicly the Company, Mr. Trump, any Trump Company, any Family Member, or any Family Member Company or any asset any of the foregoing own, or product or service any of the foregoing offer, in each case by or in any of the Restricted Means and Contexts and to prevent your employees from doing so.

  80. Careless says

    Why do people think that spelling his name as "Drumpf " does anything other than make them look stupid, anyway? It's not like "Drumpf" is a word for shit or anything, right?

  81. Paul (A.) says

    But wasn't it Oliver Wendell Holmes Jr. who also wrote something about limiting first-amendment rights for someone who shouts "Punch that guy in the face" in a crowded theater?

  82. David Lang says

    @Tim

    are you seriously going to argue that people like that are what caused them to shutdown the event and ignore the large, loud crowd outside?

  83. Marius Meyer says

    @ObliviousScout (and others)

    A Quick Digression:
    I posted an comment way earlier in this thread under the name of "Monti" (that comment may further describe how I feel about all of this), I use that nym and another nickname and my real name online (obviously dependent on where on the internet I am right then). But, seeing as I give out my real name this time I will just keep using that.

    Ok, so…

    I fear Trump has effectively set a trap: using the words of free speech advocates even as he advocates limiting others' speech.

    I agree with you 100%. He has set himself up a just wonderful "heads I win, tails you lose situation here (and in other aread in his campaign).

    Yes, we support the free speech of everyone, including those with whom we disagree. But that doesn't mean we give extra effort to every case that crosses our desk.

    I agree with you again. My "recommended" approach here is to condemn violence on both sides and to criticize either side if they then go and hypocritically complain about their free speech. As a total Freedom of Speech believer I feel that is what I owe them, nothing more.
    Any further support from me comes from my choice.

    Trump has been complaining about how "Political Correctness" has been hampering his "free speech." This flows from a common misconception that free speech means you have the right to speak without others reacting to what you say

    Yes, and if you have to ask me I would say that this is what makes us who condemn violence evenhandedly and support free speech evenhandedly the ones who are actually stick to our principles.

  84. Richard Smart says

    Dear Mr L.,

    "The pre-CU status quo was exactly the situation that its critics claim to want to prevent."

    Not quite. Citizens United v FEC closed the period after the 1991 Austin case, the culmination of lengthy jurisprudence where the special status of the press under the first amendment was recognized.

    For some reason it seems to be commonly believed on this site that SCOTUS has never held media to be privileged in first amendment matters. Not so. They might have believed that freedom of speech held for persons of all kinds, but the press was accorded extra special treatment at various times following the first amendments (cf. the holding in Bellotti: "The liberty encompassed by the Press Clause, although complementary to and a natural extension of Speech Clause liberty, merited special mention simply because it had been more often the object of official restraints".

    The justices have struggled with this since the fourteenth amendment became law, but Austin was one case where SCOTUS came down on the side of media having special status:

    exemption of media corporations does not render [a censorship statute] unconstitutional. [My emphasis]

    Restrictions on the expenditures of corporations whose resources are devoted to the collection and dissemination of information to the public might discourage news broadcasters or publishers from serving their crucial societal role of reporting on and publishing editorials about newsworthy events; thus, their exemption from the section's restrictions is justified.

    -and CU overruled that. I have no doubt that the critics of CU would want to go back to the Austin holdings.

  85. Careless says

    Yeah, you'd struggle to find that the press has gotten as many protections as the media, despite the Constitution

  86. Dwight says

    @Marc Randazza

    I'm not ok with roughing them up, but I'm just fine with throwing them out.

    Good news, I haven't noticed anyone that takes some issue aspects of your piece suggest otherwise. I want to make clear that I don't.

    I (and I'm pretty sure others) are taking issue with your suggestion that there is any real evidence that Trump's freedom of speech was being impinged on by violence. Rudeness certainly made it difficult for him to orchestrate the image and message he wished to get across. I'll make no bones about just how darn rude it was to take up Trump's invitation to show up at his private function, and that I am of the opinion that it is a dark alley way for society to choose to go down.

    But since when has anyone on this site ever taken a stance that exercising of the 1st amendment requires not being rude?

    Bottom line, if you'll pardon the analogy: Trump shat on the floor, opened the screen door, and is now trying to blame the flies for the smell.

    Now there is something of an issue that swirls around freedom of speech in the net result of collective actions, the death by thousands of paper cuts. It is a thorny issue, a tragedy of the commons as it were, but I'm curious how you would try to go down that path without undermining free speech? Would you argue an individual's free speech be regulated based on the net effect of lots of people?

    That isn't a sarcastic, rhetorical question by the way. I'm genuinely interested.

  87. Richard Smart says

    Dear Careless,

    But "the press" has "gotten as many protections as the media". "The press" and "the media" have been interchangeable terms at least since SCOTUS decided Lovell in 1938 ("The liberty of the press is not confined to newspapers and periodicals.").

    So new-style media enjoy the same first amendment protections as the traditional print press. That's been reiterated many times since. See, for example, Mills v Alabama ("the press … includes not only newspapers, books, and magazines, but also humble leaflets and circulars") or Belotti, or Branzberg, where similar sentiments are expressed.

    Your earlier post mentioned a contradiction. At first I was at a loss to identify the contradiction you refer to, since for Ms Clinton to dislike the Citizens United decision seemed perfectly comprehensible given where her interests lie, and the point of CU v FEC was emphatically not that one rich guy was prohibited from giving money.

    (Why, incidentally, would Hillary Clinton be against a super-rich individual wanting to give her campaign money? Trump, after all, gave to Hillary's campaigns after her husband nominated Trump's sister to be a federal judge. It might not have been a quid pro quo, but the timing was interesting. MaryAnne Trump, as it happens, seems to be very competent, perfectly sane, and well loved by her brother; I can just see him proposing her for the Scalia vacancy on the SCOTUS bench. But she is hated by Cruz-style republicans, because she ruled against anti-abortion statutes.)

    Perhaps you objected to the words 'moneyed superclass'. I didn't just have in mind super-rich individuals of this world, but rather anyone with the power to redirect other people's money.

    A common thread in Supreme Court decisions up to Austin, particularly from Rehnquist, was that corporations might have free speech rights (being "persons" for purposes of the fourteenth amendment), but those had to be weighed against the rights of shareholders who did not share the political aims of directors.

    Where there was more than one first amendment right in play, SCOTUS justices worried about "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form". After CU abolished any sort of Austin-style balancing exercise, it became possible for poor and rich individuals alike to fund Super PACs and similar organizations via large corporations, without regulation.

    In other words, the Scrooge McDucks of this world weren't the problem, as individuals. As SCOTUS saw it for two decades, if officers of rich corporations can and do employ vast shareholder funds against the wishes and interests of those shareholders, it was perfectly OK to restrict a corporation's first amendment rights. But not that of the officers as individuals.

  88. David Lang says

    @Dwight
    > Would you argue an individual's free speech be regulated based on the net effect of lots of people?

    absolutly not. The net effect on lots of people is an extremly subjective thing to measure.

    Free Speech is expressly needed to protect people who are saying things that are unpopular with people in power (and who other than the people in power would measure the impact of speech?)

    You don't need Free Speech rights to protect your right to say things that the powers-that-be agree with, every country/dictator/tyrant allows that sort of speech.

    It's only when you are saying things that people don't want you to be saying that you need the protection.

    The exceptions to free speech ("fighting words", "Porn", and "yelling fire in a theater") are things that seems like reasonable exceptions when they were first introduced, but the Supreme Court has been trimming them back ever since.

  89. Dwight says

    @David Lang

    >> You don't need Free Speech rights to protect your right to say things that the powers-that-be agree with, every country/dictator/tyrant allows that sort of speech.

    If that was the case then what possible reasons is there for Marc's post calling to arms to protect Trump's freedom to speak? There was no powers-that-be involved.

    Or much more clearly, in the case of actual violence, there wasn't at the KKK rally outside of police that showed Johnny-come-lately to arrest people. It was just a larger group showing up and, by accounts, turned things towards violence (although why the KKK had showed up with a polearm flagpole is an interesting question ;) hopefully that was just for actual self-defense, rather than with an eye towards initiating violence ).

    No, the 1st amendment protects even the numerical majority's voice/opinion because sometimes there is a tyrant of one in the moment, the person that decides to take up violence because they want to silence something they don't like hearing.

    Which is what actually matches your answer to my question, rather than your assertion.

  90. Dwight says

    I should put that better that the concept of freedom of speech extends to the majority (certainly the larger group in some setting or other), the 1st amendment does so only indirectly and with aid of the rest of the Constitution (for example crafting a law that says "go ahead and shoot your neighbor if you don't like what they are saying" is out of bounds).

    This all gets blurry around that things like that contentious license plate case ( Walker v. Texas Division ), too. Texas obviously didn't rely on the 1st for that, but they did rely on the concept that the government enjoys some measure of freedom from having its speech being compelled.

  91. David Lang says

    Mob Justice and official investigations (not to dissimilar to the IRS action on Tea Party groups a few years ago) are sufficient to protect the right of the majority to speak./

    Sometimes it's sufficient to be part of a perceived majority, or a majority within a field, even if it's not the majority in society as a whole.

    And it's not that the majority doesn't have the right to speak as it is that it doesn't need to be specially protected. Using your example of a loudmouth minority dominating things. If the minority doesn't have a right to speak, then they get shut down immediately.

    Now, what you may be reaching for is that nobody is obligated to provide someone else with a platform for their speech, so a heckler in a venue paid fr by someone else should be ejected (with as much force as is required, ideally minimized to the minimum required). but in public locations such as parks/sidewalks?? The Supreme Court has said explicitly that even vocal protesters are allowed, as long as they don't block people from getting through or walking away from their message.

  92. Dwight says

    So David Lang, are you calling shenanigans on Marc Randazza's piece here on that basis? Because the protestors were in the minority in the crowd, if I understand the coverage correctly.

  93. David Lang says

    @Dwight

    what about the reports of hundreds to thousands outside?

    I've heard so many people saying so many things about what happened that I don't know for sure what did happen, but I've seen enough reports that it was a large group (at least outside, with many pushing to get in) and enough quotes from people who claimed to be there with the intent to disrupt things, that claiming that this is all Trump's fault and that he was reacting to a handful of peaceful, quiet people strains the boundries of belief.

  94. Jerry says

    @ Richard Smart "You ask "Where is there a contradiction?" Consider your use of the word 'literally'. Better yet, ask someone else about it. That word does not mean what you think it does."

    I know exactly what it means, and at the time the 1st Amendment was written it literally meant a printing press, it was not a reference to the institution of journalism. It's been expanded since to mean other forms of communication, but back then it did literally mean a printing press.

    "US citizens may or may not feel "Citizen's United" is a good thing. I'm not a US citizen, but if asked my opinion I'd recall the objections of the dissenters: that it enables powerful heads of corporations – who are natural persons – to warp the US political process beyond anything the founding fathers intended."

    Citizens United isn't composed of the "heads of powerful corporations", it's a corporation comprised of like-minded individuals who by themselves do not have power or money, and thus had to pool their money (form a corporation) in order to compete in the market of ides with those who are rich and powerful.

    "Please recall my earlier words: "I didn't want to imply that corporations or institutions have freedom of speech greater than natural persons", although the historical position of SCOTUS on that point is not quite so absolute as you assert. "Citizens United" for example can be seen as an example of SCOTUS recognizing the special status of the "media" – the majority felt the media needed to be 'protected' from censorship.""

    SCOTUS did no such thing in the ruling.

    "I'd nonetheless tend to believe, not having been brainwashed from birth, that there's nothing sacred about your constitution. It seems perfectly reasonable for Ms Clinton to want to amend the constitution (pace Ken White) to limit spending by a moneyed superclass, whose power has increased, is increasing, and ought to be diminished. She was after all the subject of "Hillary: the movie," which provoked "Citizens United" in the first place.
    And if such an amendment proves to have evil consequences, I'm sure the US Supreme Court will cope."

    The Supreme Court cannot declare a Constitutional Amendment unconstitutional. And the law struck down in Citizen United did not in any way, shape, or form limit spending by a moneyed superclass, as individuals they were exempt from the theory that 1st Amendment protections don't apply to corporations. It actually magnified their influence, while neutering the influence of those of lesser means who have to pool their money together.

    "All that is irrelevant to my broader point that "freedom of the press" is not identical to "freedom of speech", your protestations to the contrary."

    It's more commonly referred to "freedom of expression" these days, which lumps them all together and avoids the splitting hairs such as you are doing.

  95. Richard Smart says

    Dear Jerry,

    To say on the one hand that "[The Press] means, quite literally, a printing press", yet on the other that "Of course [the press] includes [journalists]" is a contradiction no matter how you slice it.

    Once called on the issue you backtracked, asserting that "It's been expanded since to mean other forms of communication". I'm guessing readers of your posts will have no difficulty in identifying your first position as a contradiction. Nullifidian perhaps. You categorically asserted there that:

    …"the press" in the 1st Amendment, btw, is not a reference to the news media or professional journalists. It means, quite literally, a printing press…

    Thou dost protest too much, and in vain; "the press" has always meant "other forms of communication" even from the time of the first amendment. One could cite Lovell where an ordinance licensing 'literature of any kind' was struck down. SCOTUS traced that back to Milton, ruling that as far as the first amendment was concerned freedom of 'the press' prohibited licensing of publication of any kind:

    …the liberty of the press became initially [my emphasis] a right to publish 'without a license what formerly could be published only with one.'

    – in short, to the founders "the press" referred to a "publication" by any means – and they meant pre-revolutionary usage, for Hughes C.J. went on to add:

    The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its connotation comprehends every sort of publication which affords a vehicle of information and opinion. [My emphasis]

    I'd note in passing that to originalists the original meaning of "the press" to the founders still pertains, in which case to originalists your interpretation would mean the first amendment must still be referring to the actual printing mechanism. Even the originalists on SCOTUS recognize that as nonsense.

    As to Citizens United v FEC recognizing the special status of the "media," for you to assert that "SCOTUS did no such thing in the ruling" is easily disproven. I had in mind this:

    Austin’s antidistortion rationale would produce the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations.

    – presumably the words of Kennedy J., who wrote the opinion of the court (p. 35). That even cites a dissent from McConnell in support, quoting Thomas: “The chilling endpoint of the Court’s reasoning is not difficult to foresee: outright regulation of the press”.

    Nonetheless, to rule in favor of Citizens United, SCOTUS had to overrule McConnell as well as Austin, not to mention other cases where SCOTUS historically recognized the special status of media. You even find that in Bellotti:

    "The liberty encompassed by the Press Clause, although complementary to and a natural extension of Speech Clause liberty, merited special mention [my emphasis] simply because it had been more often the object of official restraints".

    I'm aware that Scalia asserted that SCOTUS "consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” Scalia was at best disingenuous, and at worst attempting to "declare a Constitutional Amendment unconstitutional" as you would put it. To say such a thing is to assert that the freedoms of "speech" and "the press" are identical in application and scope.

    I'd also note that a 'moneyed superclass' might not be composed of individuals. Corporations can be owned by other corporations and it's become common for funds flowing into PACs to be untraceable, being from corporations of unclear provenance. We can be sure that some are owned by non-US citizens, but tracing the beneficial owners is problematic; even absent corrupt intent, that involves 'piercing the corporate veil'.

    It does appear to this observer – and recall I have no dog in this fight – that SCOTUS is caught between a rock and a hard place.

    The rock: SCOTUS can't protect corporate speech without ruling that "legal persons" are "persons" for the purposes of the fourteenth amendment. Treating legal persons as having first amendment rights identical to those of 'natural persons' then means media corporations had rights no different to other corporations.

    The hard place: since "the press" includes media corporations, and they as legal persons have rights no different to non-media corporations, then the three little words "or the press" mean nothing. Yet clearly, by the usual rules of statutory interpretation, they must.

    Jurisprudence since 1885 has flailed desperately between the two horns of that dilemma. At various times in its history, and in particular between 1991 and 2010, SCOTUS held that distinction is far from "splitting hairs" as you would have it.

    Now, I would be the first to agree that I have only a student's grasp of such issues. But it seems clear even SCOTUS justices have been fighting about this from a time well before Austin, let alone CU v FEC. It would be interesting to hear Mr Randazza's view of SCOTUS' dilemma.

  96. Steve Nordquist says

    The bits witnessing and linking protest to riot were weak there; likewise the Soviet/MAC10 refusenik in the comments here wasn't clearly other than Trump counterprotest or Teaparty salt. (I am thinking caps over blanks or combat rounds; and a barrel stop, mind.) Maybe there's a code switch to crowd solipsism (we streeted, muffin! We be bereft duffin! [Cribs from subs to ep. 4 of _Dimension W_]) but I'm disinclined!

    Violence belongs; all the violence that considerate behavior brings on a faction set (for, or) against it, or besetting 'plans' of a surreal expensed IgE vaycay from welcoming Syrian death-dodgers. There will be perceptual breakage, chafing and an unpreparedness to be Hayden Panettiere. Pugilism and property damage not so much.

    A right to not get booed whilst turning sanctuary into a nice park? Have a flip-floppa.

  97. Tim says

    Okay, wanting to overturn Citizens United is not the same thing as "curtailing free speech rights"

    Sure it is.

    unless you actually, genuinely believe that spending money is the same thing as free speech

    There activity that got them in to legal trouble was to produce a movie, not "to spend money". Sure they got together money and spent it in order to produce the movie, but outlawing its production or distribution, or having them face government punishment for doing so is a serious infringement of their 1st amendment rights and of their free speech (in the sense that term is normally used, which goes beyond literal direct speech but instead broadly in to expression.)

    and rich people just matter more than The Poors

    Respecting and protecting the rights of the rich and the poor may enable the rich to have more of an impact, but it isn't saying they matter more than the poor, or should or do have extra protection.

    As for would be fascists – Fascist tend to be big on restricting freedom of speech and expression.