Editor’s Note: Marc J. Randazza is a Las Vegas-based First Amendment attorney and managing partner of the Randazza Legal Group. Follow him on Twitter: @marcorandazza. The opinions expressed in this commentary are his.
Marc Randazza says Trump, who has talked about curtailing First Amendment protections, deserves the right to speak freely
When political rallies are canceled for security reasons, no one should celebrate, he says
Randazza: We need to protect the marketplace of ideas, letting rival views compete peacefully
Is 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.”
And now, while everyone is trying to play the blame game, Trump ironically asks, “What happened to freedom of speech?”
Rivals miss the mark
Trump’s Republican rivals exploited the issue to try to signal their own virtues, but also missed the mark.
Marco Rubio chimed in with his own infantile “thanks Obama” statement. “We are being ripped apart as a nation,” he told Fox News’ Megyn Kelly. “The President bears some responsibility for some of his rhetoric. People are angry.” Really? If Rubio remains in the race, perhaps his next campaign ad could blame Obama for the assassination of Archduke Franz Ferdinand.
Ted Cruz said, “When you have a campaign that disrespects the voters, when you have a campaign that affirmatively encourages violence, when you have campaign that is facing allegations of physical violence against members of the press, you create an environment that only encourages this sort of nasty discourse.”
On the Democratic Party side, the candidates struck the same tone.
Bernie Sanders said, “What Donald Trump must do now is stop provoking violence and make it clear to his supporters that people who attend his rallies or protest should not be assaulted, should not be punched, should not be kicked.” Hillary Clinton said, “The ugly, divisive rhetoric we are hearing from Donald Trump and the encouragement of violence and aggression is wrong, and it’s dangerous.”
Even John Kasich, who has been the “adult” in the Republican campaign decided to blame Trump himself. “The seeds of division that Donald Trump has been sowing this whole campaign finally bore fruit, and it was ugly.”
Perhaps they are right. After all, Trump himself has not been tolerant of dissenters at his rallies. In fact, it is fair to say that he’s even incited violent suppression of dissent when that dissent is aimed at Herr Drumpf. And he has certainly done little to discourage it.
What is missing from all these statements? A blanket condemnation of violence to suppress speech. Even the most ardent anti-Trump among us should lament that a political speech was canceled due to fears of violence. I would have preferred to hear the other candidates condemn that – even if Trump would never have done so himself.
Standing up for the rights of those who would not do it for us is perhaps the noblest expression of a commitment to liberty.
It doesn’t matter what team you’re on
When free speech is a casualty, we should not be dividing into tribes and pointing the finger. Trump may be cultivating this intolerance, but no matter whose team you are on, you should be outraged that a political rally was canceled – and you should be outraged at those who celebrate that fact.
And, before you blame Trump and the extreme right, you should make sure that your “team” is clean, too.
After all, a few weeks ago, when six lonely, sad, and pathetic Ku Klux Klan members tried to march in Anaheim, they were descended upon by violent counterprotesters. They acted with as much beastly violence as the awful Trump supporter who allegedly sucker punched a protester. Meanwhile, anti-KKK protesters in Anaheim might have killed their victims, had a Jewish expert on hate crimes not ironically and heroically intervened.
Bernie Sanders said, “In America, people have a right to attend a political rally without fear of physical harm.” He was referring to dissenters who try and protest inside Trump rallies. And he is correct. But, what I would like to see is us all exalting political discourse and condemning violent suppression of dissenting views.
Where were these voices when Shapiro could not give a lecture because of a crowd that wanted to silence him? Where were these voices when KKK members lay on the ground being beaten with sticks?
If you are ready to point at Trump and blame him for cultivating violence, you should also condemn those who actually perpetrated violence at Cal State or in Anaheim. If you did not, then you’re not against political violence, you’re just choosing sides and applying different rules to those you agree with.
What we could lose
When the shadow of violence threatens discourse, we all lose. It doesn’t matter whose message suffers. Whether police thugs pepper spray nonviolent Occupy protesters or otherwise-right-thinking-people attack the KKK, any American should look at the scene, and forget about what message either side was hoping to convey.
If you want to convey racial tolerance, the last way you should be doing it is with violence or intimidation. We should set aside our political beliefs and stand with the side who gets attacked – even if that means defending the free speech rights of the KKK.
Justice Oliver Wendell Holmes Jr. wrote: “[T]he ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.”
Trump has a right to his views. Just as important, his supporters have a right to hear him speak.
Those who disagree with him, the KKK, or the Occupy movement have a right to raise opposition, but to use violence to do so would cut against the principles that our entire Constitution rests upon. The First Amendment stands for principles like that given to us by New York Times v. Sullivan, “Debate on public issues … [should be] … uninhibited, robust, and wide open.” Yes, the same New York Times v. Sullivan that Donald Trump might seek to take away from us if he is elected.
Let ideas, not gangs, compete
It is a fair opinion to think Trump’s speech is offensive, problematic, or hateful. But, the First Amendment requires neither tact nor politeness. It requires that we permit all views to set up stalls in the marketplace of ideas, and we let that marketplace decide which ideas prevail. That is why it is called “the marketplace of ideas,” not “the marketplace of gangs beating each other up.”
Would Trump similarly stand up for the rights of others? I doubt it. But that is not the point.
If you don’t stand up for Trump’s liberty today, someone may come for yours tomorrow.
If we believe in free speech, we need to believe in Trump’s as well.
The richest Wall Street banker must side with Occupy when the cops attack them. Parents of mixed-race children must side with the KKK when they are attacked. Even Illinois Nazis should stand up for Jews if someone tries to silence them with violence. Dammit, this is the United States of America, and there is room for the entire spectrum of political discourse.
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. 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.