I am a big supporter of the First Amendment. For those who have forgotten their high school American history and civics classes, it reads as follows:
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.
The First Amendment was proposed, as was the remainder of the Bill of Rights, to assuage the fears of anti-Federalists that the new federal government created under the proposed Constitution would not take away existing individual rights or rights by the individual states not seated under the Constitution to the new federal government.
The First Amendment permanently wove a number of freedoms into the fabric of American society. I believe two of these freedoms — that of speech and assembly — are under attack in this presidential election cycle.
There are two readings of the First Amendment. There is the strict reading in the Constitution that provides constraint on government, i.e. “Congress shall make no law…” Thus, the First Amendment applies to a public university, e.g., Rutgers, but not to a private university, e.g., Princeton. Therefore, while a speech code at Princeton is not actionable under the First Amendment, the same speech code at Rutgers may be.
Freedom of speech is not absolute. There are certain exceptions, notably incitement, fighting words, and offensive speech.
“Fighting words” is speech that “tend[s] to incite an immediate breach of the peace” by provoking a fight, so long as it is a “personally abusive [word] which, when addressed to the ordinary citizen, is, as a matter of common knowledge, inherently likely to provoke a violent reaction.” Such speech must be “directed to the person of the hearer” and is “thus likely to be seen as a ‘direct personal insult.’”
Along with fighting words, speech might be unprotected if it intentionally, knowingly, or recklessly inflicts severe emotional distress.
Societal behavior has tried to extend freedom of speech to private settings. How many times have you heard someone say “I have the right to say that”?
Nowhere has this come more to the fore than in reactions to the campaign of Donald Trump.
I am not a Trump supporter. Indeed, I have no favorite in the current field of Republican candidates for president.
As many political pundits have noted, the Trump phenomenon is something new in American politics. The norms no longer apply. As the Trump campaign is unique, opposition to Trump is also unique. Much of the opposition has to do with hurt feelings.
Introducing “microaggression” — a subtle but offensive comment or action directed at a minority or other non-dominant group that is often unintentional or unconsciously reinforces a stereotype. The definition of microaggression has been subtly expanding to include any comment that a person might find offensive and the cause of emotional distress.
Many people claim that some of Trump’s statements and even Trump’s name fall into this category. Thus, at Emory University, when “Trump 2016” was written in chalk around the campus, a group of students demanded, and got, a meeting with Emory’s president, claiming the messages were intimidating, causing “genuine concern and pain.” The president issued a letter in which he said students confronted by Trump’s name in chalk “heard a message about values regarding diversity and respect that clash with Emory’s own.”
Admittedly, Trump has said things that many find offensive. That is his right. But do anti-Trump groups have the right to violate Trump’s right of free speech and his supporters’ right to assemble?
A Trump rally in Chicago was called off because of security concerns. A Trump rally in Tucson, Ariz., was interrupted by a protestor wearing a Klan hood. Anti-Trump groups have threatened the “largest civil disobedience action of the century.”
A man who rushed the stage at a Trump rally in Dayton, Ohio, got air time on CNN. “I…have the right to the heckler’s veto.” There is no constitutional right — nay, no right — to a “heckler’s veto.” Is Trump Derangement Syndrome a reason to allow the curtailment of Trump’s right of free speech and his supporters’ right of assembly? These tactics are akin to those of the Nazi Brownshirts in the 1930s, intimidation of the opposition by physical and other means. Would the media tolerate Trump supporters using similar tactics against Hillary Clinton?
Which takes us to Trump’s appearance March 21 at the AIPAC policy conference in Washington, DC. I watched Trump’s speech, which was generally well received and which prompted numerous standing ovations. Was it offensive? To AIPAC president Lillian Pinkus it was. It smacked of microaggression; President Obama, she said, was due an “unprecedented” apology.
A tearful Pinkus said, “There are people in our AIPAC family who were deeply hurt last night and for that we are deeply sorry. We are deeply disappointed that so many people applauded a sentiment that we neither agree with nor condone.”
What was so offensive? “With President Obama in his final year — yay!” said Trump. Later, he called the president “maybe the worst thing to happen to Israel.” Many within the Jewish community would agree with these sentiments.
The Trump kipa was the most popular of the candidates’ kipot at AIPAC.