Despite our oft-stated aspirations to be nations of laws, not of men, I’ve always thought it clearer to see Britain and America as bodies politic, not legal communities. In the United States, even in our most fundamental rights and duties under the Constitution, we are more governed by popular will than guided by the law. A good example of this (some might wish to say, a timely example of this) is impeachment. A few months back, I published a book called Faithless Execution, about President Barack Obama’s systematic lawlessness. The burden was to examine how the United States Constitution grapples with executive excess.
The Framers expended much of their energy on reining in the president. They wanted a clear legal standard defining the type of maladministration that could trigger the chief executive’s removal from office, so they settled on “high crimes and misdemeanors,” a term of art referring to breaches of the public trust that they borrowed from British law. Yet they also wanted to make removal very hard to do—to ensure that it would be invoked only in cases of egregious misconduct, not trivial wrongs or partisan spite—so they settled on requiring a two-thirds supermajority vote in the Senate. As a practical matter, that meant there could be no impeachment absent a public consensus that cut across partisan and ideological lines. Consequently, a president can commit a hundred offenses that are legally sufficient to warrant impeachment—a proposition our current president seems keen to prove. He will not be removed from power, though, absent the political will to oust him. On this constitutional issue of utmost importance, politics trumps law.
Speech works the same way—or at least that is what I was fully prepared to argue here on the threats confronting the core Western value of free speech. Hence the title “New ‘old-fashioned shaming,’ ” which alludes to an episode that makes the point quite brazenly. It happened in Turkey in 2011. Hillary Clinton—then the U.S. secretary of state, now the Democratic Party’s putative 2016 candidate for president—was continuing the Obama administration’s already longstanding collusion with the Organization of Islamic Cooperation (a bloc of fifty-six Muslim countries plus the Palestinian Authority) in a campaign to forbid speech that denigrates Islam. In the wide net cast by sharia law’s repressive blasphemy standards, such speech includes critical examinations of Islam, no matter how accurately they represent Islamic supremacism—a mainstream interpretation of Muslim doctrine that is bellicose, misogynistic, harshly discriminatory, and often cruelly punitive.
At the conference in what has become known as the “Istanbul Process,” Secretary Clinton lamented that the effort to stamp out the common sense commonly demagogued as “Islamophobia” had been hampered by the inconvenient fact that “for 235 years [of American history], freedom of expression has been a universal right at the core of our democracy.” The First Amendment made it extraordinarily difficult for government to prohibit speech explicitly. Still, she maintained that Leviathan could get the job done by an alternative route—one no doubt near and dear to the hearts of the sharia enthusiasts in her audience. The Obama administration, she promised, would “use some old-fashioned techniques of peer pressure and shaming, so that people don’t feel that they have the support to do what we abhor.”
The specter of coercion was breathtaking.
The federal government’s tentacles run deep into what used to be the realm of private economic and social activity. Where it does not intercede directly, Washington, particularly on the Left side of the political aisle, finds ways to line the pockets of self-styled grass-roots activists who use the public funds for ostensibly private agitation—what we might call government by community-organizer (both Mrs. Clinton and President Obama having studied and practiced the radical politics of Saul Alinsky).
With that infrastructure in place, Secretary Clinton could afford to concede that repealing the First Amendment—trying to enact a straight up legal prohibition of speech—was beyond the pale. After all, she knew that exactly the same effect could be achieved by a willful administration’s flexing of its extra-legal muscles. This is the Obama approach to governance: Exploit raw power heedless of lawful constraints on legitimate authority.
So that was originally going to be my argument: the contention that, in suppressing free expression, as in other instances of executive malfeasance, a corrupt government need not concern itself with the law, just the politics. The question is not what the Constitution says government may do; it is what the political environment indicates government can get away with.
Specifically with respect to the First Amendment, there is a legal standard, a guarantee against government suppression of speech —speech entailing any of various modes of expression and communication. But a guarantee is not worth the parchment on which it is written unless it is enforced. If the government that is obliged not merely to respect but to safeguard free expression not only defaults but also willfully exploits its awesome powers to suppress speech, then the law is beside the point. What matters is political might: How much suppression of speech do political officials reckon they can impose before there is a backlash? Does the public care enough about this purportedly fundamental right that a politician who tries to curb free expression will feel the people’s wrath come election time?
I have more examples of our current administration’s extra-legal, brass knuckles suppression tactics than we could possibly cover in this space. Perhaps the most infamous one—although there is plenty of competition for that distinction—arises out of the Benghazi Massacre of September 11, 2012: an act of war by al Qaeda-affiliated jihadists who besieged a sovereign (albeit mysterious) American government compound in Eastern Libya, murdering our ambassador and three other government officials.
In a patent attempt to conceal the massive failure of Obama’s Islamist-empowering foreign policy and the falsity of his claims to have put a “decimated” al Qaeda “on the path to defeat,” the administration very publicly fingered an obscure anti-Muslim video—as opposed to our jihadist enemies—as the culprit. Not content with this bit of fraud, the Justice Department jailed the film producer under the guise of a parole violation. (Technically speaking, there is no longer parole under federal law. The film producer, who had previously been convicted of fraud, was on “supervised release,” the conditions of which he was accused of violating.) This prosecution blatantly violated the First Amendment: In effect, the producer, a man named Nakoula Basseley Nakoula, was imprisoned for expressing contempt for Islam and its prophet.
Privately, the administration knew this was lawless. The Justice Department quietly made certain that, when the producer was finally cajoled into pleading guilty, it was only to specifications involving not the substantive content of the video, but Nakoula’s mere use of the Internet in violation of parole restrictions—something that would never result in parole revocation in a normal case.
Publicly, though, Obama officials liberally used Nakoula as an object lesson in how detractors of Islam could expect to be treated. Administration figures brayed that the video had caused the murders. Secretary Clinton even went so far as to vow to one victim’s father that the administration would “get” the man who produced it. Simultaneously, the President himself proclaimed in a United Nations speech that “the future does not belong to those who slander the prophet of Islam.”
Alas, the future does seem to belong to those who slay American officials. Almost all of the culpable jihadists remain at large and unscathed more than two years after what was clearly a coordinated and quite predictable terrorist attack.
The President’s construction of Islam as a religion of peace unconnected to jihadist terror is far from the only official “truth” from which no dissent is brooked. The administration, to take another of many examples, has unleashed the Internal Revenue Service to harass conservative organizations—Obama’s main political opposition—denying them the tax-exempt status they need to raise funds and court public opinion.
Dinesh D’Souza, a prominent conservative writer who has produced wildly successful movies and books shedding light on the President’s radical roots, was criminally prosecuted for a campaign finance violation that the Justice Department routinely allows to be settled by an administrative fine. For purposes of comparison, consider that the Obama 2008 campaign committed violations valued in excess of $2 million, dwarfing D’Souza’s piddling $15,000 transgression. I know you’ll be shocked to learn that the Obama Justice Department permitted the Obama campaign to dispose of the matter with a mere fine and no prosecutions. Indeed the fine, $350,000, was considerably less than the half-million dollars Obama’s prosecutors required D’Souza to post just to be released on bail. Thankfully, a federal judge recently sentenced D’Souza only to probation, turning a deaf ear to the Justice Department’s demand for a sixteen-month jail sentence.
The Obama administration does not confine itself to bludgeoning dissenting citizens. Sovereign states that dare challenge the President’s non-enforcement of the immigration laws, or that seek to preserve the integrity of their election processes, find themselves hauled into court. It makes no difference that these states are on sound legal footing, often based on fresh Supreme Court precedents. Steeped in the community-organizer tactics of extortion, intimidation, and vexatious litigation, the president and his minions know that the process is the penalty for those who assert their opposition.
The Justice Department has thousands of attorneys and a virtually limitless, taxpayer-funded budget. Most states, private businesses, and individual citizens cannot compete. A corrupt administration, untamed by the Justice Department’s traditional aspiration to do actual justice, can win by merely threatening to file lawsuits. The targets must account not only for costly legal expenses but also for President Obama’s appointment of hundreds of like-minded progressive activists to the federal bench since 2009. Having a meritorious legal position is no guarantee against a calamitous ruling, to say nothing of extensive, ruinously expensive litigation. There is enormous pressure to settle, even on highly unfavorable terms.
Furthermore, as we’ve already observed, it is not just the government and its lawyers out to silence the opposition. Washington works hand-in-hand with its outside agitators. Our colleague Mark Steyn and National Review, for example, have been hauled into court for publishing an opinion piece on notorious data manipulation by prominent “climate-change” alarmists.
As Mr. Steyn has sharply observed, in the context of stifling speech, it is increasingly frivolous to distinguish between “state coercion” and “cultural coercion.” To be sure, the Constitution is designed as a limitation on government. In theory, its proscription against curtailing free expression is irrelevant to repressive conduct by private actors. In the real world, though, the party in power systematically conspires with outside rabble-rousers in its sundry gambits on “Islamophobia,” “marriage equality,” “income inequality,” the “war against women,” and the rest of the “social justice” agenda. The purportedly “private” actors exploit a coercive environment created by government—and like-minded “progressive” jurists dutifully take their cues.
So that is my argument: Don’t obsess over the First Amendment because a malevolent government and its intolerant fellow ideologues do not have to touch the literal Constitution in order to void free speech; they can simply run roughshod over our liberties and smugly dare us to do something about it.
Or at least that was going to be my argument.
But then, the President’s allies in Congress did the unthinkable – if anything in Washington can truly be thought unthinkable any longer. In the United States Senate, majority Democrats actually moved to repeal the First Amendment.
They did not describe it that way, of course. They never do. They claim, in this instance, “merely” to be regulating the corrupting influence of money in political campaigns. That has been a hobby horse for the Left since the Supreme Court’s 2010 ruling in the Citizens United case, which reaffirmed that corporations, like the individuals who constitute them, are protected from governmental restrictions on speech.
Nonetheless, the legislation endorsed by all fifty-four Democrats, a solid majority of the Senate, would empower Congress to “regulate and set reasonable limits” on money spent by anyone “to influence elections.” Of course, money is speech. Without publication resources and the wide dissemination of opposing views, there can be no political discourse. And political discourse is the quintessential free speech the Framers sought to safeguard. As the proponents of Obama’s pet legislation know, to enable incumbent politicians to decide what is “reasonable” for their challengers to broadcast is, in effect, to shut down debate. The goal is to install a permanent ruling class, the antithesis of the Constitution’s conception of republican democracy animated by an informed, engaged citizenry.
If there were any doubt about that, Senator Ted Cruz, the dynamic conservative Republican from Texas, laid it to rest by proposing an alternative to this legislation. Senator Cruz’s counterproposal went like this:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Sounds familiar, right? Senator Cruz proposed the First Amendment itself, verbatim. Democrats on the committee unanimously rejected this suggestion. They would make themselves the arbiter of what is, and what is not, within the proper bounds of debate and dissent.
In the end, what is this freedom of speech that the Constitution protects? The modern Left rationalizes that the First Amendment’s meaning is unclear—that whatever the Framers had in mind, they certainly did not mean to bar all abridgements of speech. After all, federal and state governments have prohibited various categories of speech since the beginning or the American republic, just as their British forebears did.
Perhaps excusably, this interpretation glosses over one of the First Amendment text’s most salient words: the.
The Amendment does not prohibit Congress from abridging “freedom of speech” in general. It took pains to prohibit abridgement of “the freedom of speech.” Like “high crimes and misdemeanors”—which, as we’ve seen, does not refer to ordinary crimes and misdemeanors but to political wrongs involving breaches of the public trust—“the freedom of speech” was a term of art.
As Judge Robert Bork explained, states and territories with robust political discourse have nevertheless always recognized a governmental power to regulate real incitement to criminal conduct—so-called fighting-words intended to provoke violence—and speech that is obscene, lewd, or profane. The latter, as the Supreme Court explained in its 1942 Chaplinsky decision, is “clearly outweighed by the social interest in order and morality.” Commercial speech, too, has always been subjected to time, place, and manner restrictions. In addition, speech that maliciously reveals national defense secrets has also long been considered treasonous and condemnable.
Until the latter half of the twentieth century, it was not thought controversial that the freedom of speech could exist comfortably and recognizably without embracing these categories of expression. And, as is usually the case with constitutional concepts, while there are gray areas and knotty questions at the margins, there is no doubt about the core. In the case of free expression in a functioning, flourishing democracy, the core is the protection of political speech, of vigorous non-violent dissent. That core is exactly what today’s authoritarian majority seeks to eviscerate.
Congress wants to amend the First Amendment.
Hillary Clinton’s Istanbul Process has not stopped at the abuse of power she euphemistically calls “old-fashioned shaming.” The United States joined with the Organization of Islamic Cooperation in United Nations Human Rights Council Resolution 16/18. It instructs member states to enact laws that render illegal speech that might promote hostility to, or discrimination against, religion—and of course, there is no secret which religion the Resolution’s sponsors intend to elevate above our liberties.
Increasingly, moreover, the courts have gotten into the act. Not long ago, a powerful federal appeals court in California ruled that a public school could forbid students from wearing clothing emblazoned by the American flag on Cinco de Mayo—rationalizing that such patriotic displays might provoke Mexican-born students to violence. The heckler’s veto and the uncivilized brute’s potential outbursts—the very social pathologies that free speech is designed to overcome—have perversely become grounds for free speech’s suffocation.
It is no longer simply a matter of free speech being overridden by sheer political audacity. The enemies of liberty are now boldly moving against the language of the law itself. They are erasing the words that, for centuries, reflected the West’s commitment to free expression as a bulwark of civil society. After a generation of paralyzing political correctness, they calculate that this commitment is a relic of a bygone time.
My fear is that they may be right.