A Forgotten Factor for Free Speech

Just a small point, but one worth noting. There have been several stories the past few days reporting on protests occurring at Donald Trump political rallies. One such story, in discussing comments from Trump’s political rivals, related: “While [Marco] Rubio pressed Trump to condemn the violence, he also acknowledged that Trump is being denied his free-speech rights and that some of the Chicago protesters could have been paid.” Later in the same story there is this statement: “[Trump] said he made the decision to cancel [the Chicago rally] after meeting with law enforcement authorities. Trump also said his First Amendment rights had been violated.”

The observations in this story concerning the First Amendment are abjectly wrong. A person’s First Amendment free speech rights are not violated when someone protests at his or her speech event. This is because such a right can only be infringed by the government. (Technically only the federal government since the First Amendment states “Congress shall make no law … abridging the freedom of speech,” but I will leave that aside for now since for the past 70 years almost everyone has treated the Free Speech Clause like it applies to the states). The last time I checked, no government is preventing Donald Trump from speaking at any event.

Unfortunately, the fact that such lines are so flippantly stated by our politicians (Rubio actually agreed with Trump on this point) is symptomatic of how little many people understand this crucial aspect of our constitutional rights, i.e., that they involve government interference with our liberty, not private actions.

To take another example from the same situation, the First Amendment also states that “Congress shall make no law … abridging … the right of the people peaceably to assemble.”  This does not mean that the people who protested at Trump rallies this past weekend violated the assembly rights of the people who came to hear Trump speak because, again, the protesters were private actors, not government personnel preventing Trump supporters from holding a political rally.  Those protesters certainly may have been guilty of criminal behavior, as reports indicate that violence occurred at some of these events, but that is different than a violation of constitutional rights.

This terrible conflation of private and government action needs to stop.  On the one hand, people need to realize that the Constitution seeks to limit government power, not the freedom of private individuals.  The reason for this is that the Founders knew that government is the single gravest threat to freedom precisely because it constitutes organized force.  Government perpetually needs to be reminded of its limits because it is always seeking to do more, and the more it does, the less freedom private individuals possess.  The Constitution, and the Bill of Rights in particular, is supposed to serve as a constant sentinel of government limits.

At the same time, people need to understand that just because someone does something you don’t like it doesn’t mean a constitutional violation has occurred.  Constitutional violations are egregious abuses of lawless government.  Labeling any bad behavior a constitutional violation trivializes government violations of rights.  Such trivialization is unsurprising, however, because most government overreach today occurs with the acquiescence of the people and so constitutional infirmities are ignored.  Unfortunately, people want government to do more because they believe (wrongly) that it is more efficient or — even more common — they want to force other people to do something the way they think it should be done and government provides the easiest path to uniform compliance of behavior.

I think this last point is a major contributor to the common conflation of government and private action.  There are many people who believe they know better than others how things should be done and they see government as the quick path to making it happen.  Doing it “the right way” is more important to these people than respecting other people’s rights (and the possibility that they could be wrong does not cross their minds).  So they enlist government for a whole host of projects that it has no business performing.  In fact, that last sentence is a good description of the idea behind Bernie Sanders’s campaign.

A byproduct of this thinking is that because these people equate their wishes with what government should be doing for society, they end up having a hard time distinguishing between true government action and private actions.  Hence you get the kind of thinking mentioned in the news story that began this post.  People think that any time a group of people does something, it is the equivalent of the government doing it — either because a person thinks the government should be doing it (some of those protesters probably do think the government should prevent Trump from speaking) or because they want the government to stop the behavior of groups they don’t like (which is the insinuation of Trump’s claim of a constitutional violation).

In both cases, the thinking stems from the fact that people have grown so used to intrusive government that they frequently fail to distinguish between public and private action.  The first step to ending the confusion is to draw attention to core political concepts.  Donald Trump does not have a free speech problem. He, along with many others in this country, has a problem understanding basic constitutional law. Let’s try not to forget what the Free Speech Clause is really trying to protect us from.