Republicans — not all Republicans but many Republicans — seem to have a seriously warped view of the First Amendment these days. This can be demonstrated in several examples:

• Pence’s explanation for not wearing masks at Trump rallies
• Trump’s believing that Twitter and Facebook can’t flag his content
• The controversy over the Goya foods brand
• Conservatives’ objecting when MIT chaplain was dismissed

What does the First Amendment Say?

First, of all let’s remind ourselves of what the First Amendment actually says. In it’s totality, the First Amendment says the following:

So, the first thing to note is that the First Amendment is directed at the federal government, or specifically Congress (and it’s also directed at state governments through the Fourteenth Amendment). What the First Amendment says is that governments may not restrict the freedom of speech based on upon content. It says nothing about private institutions.

Freedom of Speech is not Absolute

One of the things that people learn in the first year of law school is that freedom of speech is not absolute. So, for example, it’s well established that you “cannot shout ‘fire’ in a crowded theater.”

Why not?

Because it would create a public health danger that people would be trampled on the way out the door. This much was established early on in the case of Schenck v. United States, 249 U.S. 47 (1919).

Three other well-known exceptions to the freedom of speech are:

• Child pornography
• Calling in bomb scares
• Libel and slander

In all these situations there is a countervailing interest that must be balanced against freedom of speech. And public health is definitely one of those interests.

Pence believing the First Amendment people from wearing a mask

Mike Pence, who is (alongside being Vice President) also the head of the White House Coronavirus Task Force, tried to make the argument recently that because of the First Amendment, it was proper that the Trump campaign did not enforce mask wearing, social distancing, or even a city limit on large gatherings at their recent campaign rally in Tulsa, OK (the one which created a coronavirus hotspot shortly after the President left town). Pence said this in response to reporter’s questioning why none of these things were enforced at the rally:

Well, the freedom of speech and the right to peaceably assemble is enshrined in the Constitution of the United States.

Pence press conference on June 26, 2020

So, several things to consider.

1. It’s not clear that wearing or not wearing a mask is “speech” within the meaning of the First Amendment.
2. As we’ve already established (see above), freedom of speech involves a balancing test, and keeping the public safe is the kind of high priority interest that normally overrides free speech rights.

Trump believing that Twitter and Facebook can’t flag his content

Several weeks back Twitter (President Drumpf’s all-time favorite medium) actually began to flag some of his posts for violating their community standards, causing the President to threaten to take away some of the legal protections that social media currently receives. (Facebook eventually followed suit, after much pressure from advertisers and their own employees.)

So, several things to consider:

1. Twitter is not the government, and not a public forum (although I suppose an argument could be made that it’s like a quasi-public forum).
2. Twitter has not kept Trump from tweeting, they have simply added a notice that his tweets violate community standards. (Anyone else would have simply been kicked off of Twitter.)
3. Trump can still defame people like Joe Scarborough — more on that in an upcoming post — so Twitter has hardly been “unfair” to Trump.
4. Finally and most importantly, Trump now is the government, so it is he (and not Twitter) that cannot impose content-based restrictions on speech.

The controversy over the Goya foods brand

Robert Unanue, the CEO of Goya Foods, was recently invited to the White House to discuss President Trump’s Hispanic Prosperity Initiative, and while there he said the following in a speech:

We’re all truly blessed … to have a leader like President Trump who is a builder. And that’s what my grandfather did, he came to this country to build, to grow, to prosper … and we pray, we pray for our leadership, our president, and we pray for our country.

Robert Unanue at the Hispanic Prosperity Initiative

This, it turned out, did not make him popular with the greater Hispanic community which is the primary consumer of his brand’s foods. It caused a number of customers to call for a boycott of Goya foods. Unanue complained that this was a suppression of his free speech rights.

So, several things to consider:

1. Freedom of speech does not mean that you can say whatever the fuck you want without any consequences.
2. Unanue is free to praise Donald Trump, and Hispanic customers are free to boycott his foods.
3. I’m not personally a huge fan of “cancel culture,” and Unanue is correct when he says that there is a bit of a double standard (since he previously came to the White House in support of President Obama).
4. On the other hand, he clearly knew or should have known how his comments would play in his own community.

Conservatives objecting when the MIT Chaplin resigned

There was an outcry about a month ago when Rev. Daniel Patrick Moloney, who served as the chaplain at the Massachusetts Institute of Technology, was forced to resign after he sent out an email that questioned whether Officer Derek Chauvin’s was motivted vby racism in the killing of George Floyd, and suggested that Floyd had “not lived a virtuous life.”

So, several things to consider:

1. Freedom of speech does not mean that you can say whatever the fuck you want without any consequences.
2. Technically the chaplain resigned and wasn’t fired, but it’s pretty clear that he was forced out.
3. I’m not personally a huge fan of “cancel culture” — and one can certainly make an argument that the chaplain should not have been forced to resign — but what he wrote was completely out of step with the students at MIT (which happens to be an especially diverse student body because of the enormous percentage of international students who study there).
4. The Archdiocese of Boston — which is hardly a “liberal” organization — has every right to decide who among their staff is a good fit for a venue like MIT.