Anti-Trump protests and the free speech argument

There’s a lot of interesting arguments going around in the wake of the cancelled Donald Trump rally in Chicago. One of them is that the protesters violated Trump’s First Amendment rights to free speech, or his supporters’ First Amendment rights to free assembly. These arguments are wrong, and I want to take a look at why that goes beyond the refrain of “freedom of speech doesn’t mean freedom from consequences” (which is technically true, but I think it’s a flippant and overused argument).

The really obvious problem is that the First Amendment regulates the behavior of the state. The only First Amendment issues you could raise in this situation involve the actions of law enforcement, regarding their attacks on and arrests of protesters and a reporter outside – I would really, really like some of these defenders of free speech to show more concern about that part of what went down in Chicago – or if you don’t think they were legally justified in clearing the arena. The actions of private citizens have nothing to do with the First Amendment.

What people are somtimes trying to get at when they make this argument is that a society that values freedom of speech enough to protect it from government coercion in the constitution, ought to value it enough to guard against or avoid other kinds of coecive behavior in relation to speech. This is what people mean, I think, when they talk about “a culture of free speech.” And while this argument has gotten a bad rap on much of the left these days because we’re so used to it being taken to ridiculous extremes (“How dare you ban me from your website for racist comments? What about the culture of free speech?”) or to claim that criticism of one’s argument is anti-free-speech, it’s an argument that’s worth reckoning with. To understand why, I strongly, strongly recommend reading Chris Bertram, Corey Robin, and Alex Gourevitch’s essay Let It Bleed: Libertarianism and the Workplace, which takes libertarianism to task for its failure to “come to grips with the systemic denial of freedom in private regimes of power, particularly the workplace.” I don’t think the left in general, or the social-justice-oriented left in particular, should be jumping to fall into the libertarian failure mode, into the idea that state coercion is the only kind of coercion worth caring about or opposing. We should give some thought to free speech as a norm, if you will, and not just free speech as a freedom. This is why I don’t much care for, say, campaigns to get rank-and-file workers fired for saying racist, sexist, or other oppressive crap in their private lives. It’s not a violation of their First Amendment rights, but it’s also not good.

That said, not all kinds of exercises of power around speech are equal (I give some more examples in the next paragraph). State coercion actually is different – you can be arrested, subject to invasive searches of your person, have property confiscated, have to appear in court repeatedly, be forced to pay a lot of money, be incarcerated. You can lose much of your liberty. And the First Amendment regulates that kind of coercion, and I’m pretty fervent about the First Amendment. Once you get beyond that near-absolute, you have to make judgments about what kind of coercion, if any, is happening, and what kinds of effects it’s likely to have. And since none of the parties involved is the state, you have to consider the competing rights of private citizens (e.g. giving a speech is a speech act, and so is petitioning to stop a speaker’s appearance or heckling them), and the competing principles that many of us look to in governing human interaction (the idea that people should be able to express their views is a valuable one – so are anti-racism, feminism, affirming that marginalized people are welcome in your communities, and a lot more, and sometimes those come into conflict with people being able to express whatever views, wherever they want). You have to actually make some kind of evaluation about how far is too far for what principle and how to resolve competing needs. The Constitution won’t help you. And free speech advocates aren’t all going to draw all the lines in the same places – for instance, when it comes to speech and higher education, you have advocates like Angus Johnston (who you should all be reading) and advocates like FIRE, and they draw the lines in sufficiently different places that they’ve had public debates about it. I sometimes change my mind about situations that are sufficiently close to my personal lines, and my personal lines sometimes move a little bit as I think situations over (the anti-Trump protest in Chicago did not cross my personal lines). I don’t think you’re a better civil libertarian for having your lines in a different place than someone else, because civil liberties are about the individual’s relationship to the government.

For an average person who has to make a living, the employer has very strong coercive power, possibly more than any other institution except the state, but this power is much less for, say, executives, who have more power in the workplace, usually more financial resources, and probably more ability to get a new job easily. Because Facebook and Twitter are such huge platforms, they have a lot of power to control what ideas get out there and how (by taking action, or for that matter, by not taking action, such that people get threatened and harassed until they abandon the platform in stress and fear). The book-publishing industry has a lot of power over authors, but will be using that power against a whole lot of speech by definition, because they don’t publish every single author who submits something. The blogger who bans you from their comment section has almost no coercive power. The student who asks for trigger warnings both has little coercive power and is not stifling you in any meaningful way (oh no, you’re being asked to say a couple of extra words – I don’t buy that you can even call that an infringement on either speech OR the related but different norm of academic freedom, unless you think that profs being required to issue course syllabi at many schools is also an infringement). There’s also the issue of what kind of platform someone has – Donald Trump gets news coverage if he sneezes, he has one of the largest platforms in the country, the idea that protesting a rally such that he decides to cancel it is stifling him is laughable.

There are also ways in which the situation of Trump’s rallies is unusual. There’s the thing where Trump has encouraged his supporters to physically attack protesters. Like, earlier that day he had said to his rally in St Louis that that one guy getting sucker-punched is the kind of thing they need to see more of, not to mention his previous comments offering to pay the legal fees of people who hit protesters. He’s creating violent spaces at his rallies, not in the “frame everything as violence” sense that you see in certain kinds of activist discourse, but in the literal, physical, interpersonal violence sense. Even if you think that people should not try to shut down other people’s rallies as a matter of principle, “space where you’re encouraged to beat people up who disagree with you” is not usually what a rally is, and it doesn’t strike me as unreasonable that people would want to shut down such a space in their community, especially when it involves racists having such a space at a majority-people-of-color university.

A last bit of the argument that I want to address is the “Well now right-wingers will disrupt Sanders and Clinton events and then you’ll be sorry” argument. My answer is, maybe they will. Protest/counterprotest situations aren’t exactly uncommon. Primarily as a street medic, I’ve been in protest/counterprotest settings that were nonviolent and quiet, nonviolent and loud, and (on at least part of one side) not nonviolent. The first big protests I ever went to were protest/counterprotest situations around same-sex marriage in Massachusetts, when I was 18. Big loud crowds on both sides, people crossing the street to mess with each other, people milling around mixing, most peaceably if noisily, a few less so. I befriended a gay 13 year-old goth who rather hilariously photobombed some homophobes getting interviewed by TV news, and then got kicked in the leg while crossing the street. Also before I started street medicking, I was at a Planned Parenthood rally where the counterprotesters were mostly peaceful but a few of them were trying to tear down people’s signs, shove them around, and rush the stage. I’ve medicked some nontrivial number of Israel/Palestine protests/counterprotests that have covered the whole range of conditions that I listed above. I’ve seen a couple of white supremacists counter the Ferguson protesters I was medicking for, I’ve medicked LGBTQ and anti-fascist counterprotests of a Tea Party rally featuring vicious homophobe Scott Lively, I’ve medicked a pro-Syrian-refugees-coalition vs militia protest/counterprotest (that ended up being very mellow as the militia people decided to go march elsewhere). It’s just not that novel, oppostion happens when you do politics. Violence and threats, obviously, are different matter, but if right-wingers start loudly-but-nonviolently protesting Clinton or Sanders rallies, I’m sure that everyone can manage and it is not like anyone won’t be able to access Clinton’s or Sanders’ opinion on the issues of the day if they want it.

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