Monday, February 8, 2021

First Amendment Follies


Drawing by Patrick Chappatte, New York Times, February 2017.

If you're confused about the First Amendment argument, that poor Donald can't be punished for exercising his free speech rights, don't be. Rand Paul's argument

Paul also noted that Trump was within his First Amendment rights when he addressed a crowd of supporters before the attack on the Capitol that led to the deaths of five people, including a Capitol Police officer.

“People are going to have to judge for themselves … are we going to potentially prosecute people for political speech?” Paul ​questioned​.

H​e said if that becomes the case and speech is criminalized, then Democrats, including Senate Majority Leader Chuck Schumer, could be impeached over ​their fiery rhetoric against Trump​, his allies, as well as the lawmakers who stirred up protesters last summer.

in addition to showing some remarkable ignorance (he's been in the Senate how many years and he still doesn't know that impeaching a senator isn't a thing that the Constitution allows for?), is a pure red herring, and it's starting to smell, because in the first place the president doesn't have free speech rights. No government employee does, if they are speaking in their official capacity: 

1) First of all, government employees are only protected by the First Amendment when they are speaking as private citizens. If their speech is part of their official job duties, then they can be fired or disciplined for it.

2) If a government employee was speaking as a private citizen, the next question is, was their speech regarding a matter of public concern? If they weren’t speaking on a matter of public concern, the First Amendment will not protect their speech. If they were speaking on a matter of public concern, the First Amendment might protect their speech. (There’s still a test to go after that.)

3) If a government employee was speaking as a private citizen on a matter of public concern, the next question is whether the government employer’s interest in efficiently fulfilling its public services is greater than the employee’s interest in speaking freely.

In his campaign to overturn the November election, which he carried on from election night and still seems to be working—Roy notes that he seems to have moved on to the new Q target date of 4 March, the day earmarked for presidential inaugurations in the original Constitution, tripling the room rates at his Pennsylvania Avenue hotel for the nights of the 3rd and 4th (Forbes via Insider):

The normal rate for a deluxe king in March would usually run between $476 and $596, according to Forbes. This year, the same type of room is priced has almost tripled. On March 3 and 4, the magazine reported that the room is going for $1,331 per night....

This would not be the first time that a Trump hotel had raised its rates to coincide with a political event.

On January 5 and 6, Trump International raised its rates significantly. The cheapest room available was $8,000 on the night of the deadly insurrection, according to Forbes' reporter Suzanne Rowan Kelleher.

—in that campaign, I'm saying, all his speech was carried out, as long as he remained president, through his official presidential channels, on Twitter and through the White House utterance production facilities in videos distributed to the population and the press, and in "perfect conversations" from the White House with state officials he leaned on to interfere with the results (the Republican leaders of the Michigan legislature, the Republican Georgia secretary of state, and who knows how many more), and obviously in his direct address to the "demonstrators" on 6 January itself (alongside Giuliani and Junior calling for "trial by combat" etc.) and further communications with them via Twitter and video in the course of the day. If he meant to be doing that as a private citizen just expressing his personal opinions he was certainly doing it wrong. 

And his "Stop the Steal" message, while arguably a matter of concern to some members of the public (his wacky followers), was directly opposed to the government efficiently fulfilling its public responsibilities, as ratified by over 60 court decisions (many from Trump-appointed judges, as we always say) and 50 state legislatures in the form the Constitution specifies. So no, he did not have any First Amendment right to say the things he said, even if a private citizen could.

Moreover, the reasons for this are clearly spelled out in the impeachment managers' brief:

even if the First Amendment were applicable here, private citizens and government officials stand on very different footing when it comes to being held responsible for their statements. As the leader of the Nation, the President occupies a position of unique power. And the Supreme Court has made clear that the First Amendment does not shield public officials who occupy sensitive policymaking positions from adverse actions when their speech undermines important government interests. Thus, just as a President may legitimately demand the resignation of a Cabinet Secretary who publicly disagrees with him on a matter of policy (which President Trump did repeatedly), the public’s elected representatives may disqualify the President from federal office when they recognize that his public statements constitute a violation of his oath of office and a high crime against the constitutional order. No one would seriously suggest that a President should be immunized from impeachment if he publicly championed the adoption of totalitarian government, swore an oath of eternal loyalty to a foreign power, or advocated that states secede from and overthrow the Union—even though private citizens could be protected by the First Amendment for such speech.

I personally believe he did publicly champion the adoption of totalitarian government in asking the mob to force the vice president to carry out his personal wishes. But in any case the argument of fools like Paul is predicated on ignorance of the relevant law, and it really doesn't deserve any attention at all.

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