The Savage Hypocrisy of the #FreePress Protest

Today and yesterday, a number of newspapers are putting forth editorials purporting to defend freedom of the press, using the hashtag #FreePress.  It all seemed to be kicked off by the Boston Globe, which made these kinds of statements.

Journalists are not the enemy

August 15, 2018

A central pillar of President Trump’s politics is a sustained assault on the free press. Journalists are not classified as fellow Americans, but rather “the enemy of the people.” This relentless assault on the free press has dangerous consequences. We asked editorial boards from around the country – liberal and conservative, large and small – to join us today to address this fundamental threat in their own words.

Let me start with something basic.  Of course, I support freedom of the press, as well as all forms of peaceful expression and not just in words.  My readers know that I have literally gone to jail for this and am fighting in several courts to protect that right, both as lawyer and citizen.  They know I have defended the right to speak of people who cheered when my freedom of expression was suppressed.  That’s not my problem with this #FreePress protest.  My problem is the incredible hypocrisy involved and general stupidity about what freedom of the press and freedom of expression means.

For starters, complaining that Trump is assaulting freedom of the press is so ignorant it makes my head hurt.  Does anyone in the press understand that freedom of expression includes the right to criticize what others say?  In other words, the First Amendment protects the right of CNN to say X and it also includes the right of someone else to say “CNN should not have said X.”

Furthermore, the First Amendment protects Trump’s speech, too.  Now, the President doesn’t enjoy quite as many free speech rights as a regular citizen.  For instance, I am a private citizen who holds no office.  So, if I say “CNN should be audited by the IRS for criticizing the President,” that’s an idiot thing to say, but I am allowed to say it under the First Amendment.  On the other hand, Trump cannot say “CNN should be audited for criticizing me,” because 1) the IRS might take that as an order and 2) if anyone at CNN hears that, this is a threat that might chill speech.  It shouldn’t take too much on your part to understand why ordering the IRS to audit someone as political revenge is a violation of the First Amendment, but freedom of expression can be violated merely by the threat to engage in that kind of behavior.  We say that when a person faces a realistic threat of adverse government reaction that this person experiences a “chilling effect,” and it is not to be created.  The test for this is this:

The determination of whether government conduct or speech has a chilling effect or an adverse impact is an objective one — we determine whether a similarly situated person of “ordinary firmness” reasonably would be chilled by the government conduct in light of the circumstances presented in the particular case.

The words “ordinary firmness” is important.  It eliminates situations where one is just jumping at shadows.  Which I would argue is precisely what the press is doing these days with respect to Trump.  Saying that a company is “fake news” or that it is “an enemy of the people” does not meet this test.  Instead, there has to be a reasonable fear of consequences.

Further, a reasonable fear of consequences doesn’t require an actual verbal threat.  For instance, if a disproportionate number of Trump’s critics are being audited, and Trump denounces someone, under those circumstances that might be seen as a reasonable threat of audit.  But that isn’t what we have here.  We just have Trump criticizing the press.

None of that is to say that such language is good or wise.  But it remains Trump’s right to say it.  So these #FreePress protesters are protesting... Trump’s exercise of his First Amendment rights.  Do you see now why this is making my brain hurt?

“But Aaron,” you might say, “they have a right to protest what Trump has been saying, and to say that even if a President has a right to say it, he shouldn’t say it.”  And that would be correct.  However, what is insufferable is that, while they are draping themselves in the banner of free expression, how little they care about real threats to freedom of expression.

Take AntiFA, for instance.  I spell it that way, with “FA” at the end in capitals, because I consider them to be anti-First-Amendment, not against Fascists.  How can they say they are against fascism when they use fascist tactics?  It is well documented how they drove Milo Yiannopoulos out of Berkley—the alleged home of the Free Speech movement of the 60’s—and tried to do the same to Ben Shapiro.  And then there was that whole Mohammed Cartoon controversy.  For those who don’t remember, Islamofacists threatened to murder anyone who depicted Mohammed, and the same people who are using the hashtage #FreePress today gave in to those terrorists.

The most horrific example of the institutional press’s abject surrender to the terrorists can be found in the video here.  It’s a CNN report on the death threats against Lars Vilks, who drew a cartoon depicting Mohammed as a dog.  And if you go to the 20 second mark, you will see an alleged “picture” of the cartoon, but with the part that offended the terrorists blurred out.  Plainly, judging by that video, someone at CNN understood that if a cartoon is controversial, you must show it so the audience can decide the reasonableness of the other side’s position, but then someone else at CNN said, “we can’t show that! The terrorists will murder us!” resulting in this shameful display of cowardice.

Meanwhile, CNN’s Brian Stelter joins in the self-congratulation by invoking the phrase “strength in numbers.”  Yes, well, imagine if every newspaper in America published a cartoon of Mohammed and we showed that strength in numbers?  That was a moment when standing up for a #FreePress and indeed Free Expression in general would have mattered.  However, at that critical moment, the same people who are now sanctimoniously saying they are standing up to Trump choked.

And bluntly, this sort of thing tells you all you need to know.  They’re not really scared that Trump is going to suppress their free expression because we know how they respond to a real threat: they capitulate.

“But Aaron,” you might say, “that isn’t government action.”  Well, first, if you are silenced by violence and threats of violence, does it really matter if it is a government or a private party that is doing it?  Of course, the First Amendment only applies to governmental conduct, but that is only one of many ways the right of freedom of expression can be violated.

But even ignoring private actions, there are plenty of government actions that suppress free speech that the #FreePress protesters never cared about.  For instance, I was arrested for exercising my right to freedom of the press while I peacefully tried to bring a pedophile to justice.  Or if you don’t care about me, here’s a court case where Christians prevented from peacefully leafletting outside of an Arab festival.  Indeed, four Christians were arrested under this unconstitutional law.  Did you see any major outcry in the press over that?  No.

“But,” you might say, “its different when the president does it.”

Except the last president frequently violated the First Amendment.  For instance, it is no longer a matter of dispute that the Obama Administration unfairly targeted Tea Party groups for discrimination by the IRS based on their speech.  And when the Obama Administration took away the Redskins’ Trademark, that decision was cheered by the New York Times—one of the many newspapers joining in the #FreePress protest today.  Yet, an unanimous Supreme Court declared that to be unconstitutional.

Now, to be fair, the New York Times reconsidered their position after the Supreme Court weighed in on it, but if they actually cared about freedom of expression they never would have supported this unconstitutional act in the first place.  Again, this was an unanimous decision.  Nobody on the Supreme Court thought this was constitutional: not Kennedy, not Thomas, not even Ginsberg.  So this is not a situation where the argument was close.  This was the New York Times being to the left of the most liberal members of the court.

And this wasn’t the only time the New York Times has been howling hypocrites on Freedom of Expression.  For instance, here the New York Times argues that corporations do not enjoy protection under the First Amendment.  As in, not just one writer, but rather it was an unsigned editorial, and thus, it was the New York Times saying this.  And, you guessed it, the New York Times is a corporation.

Not to mention the sheer disingenuousness of the editorial, claiming that Citizens United was a case about spending and not speech.  Here’s what the Supreme Court actually said on the subject:

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under § 441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.

To say that this was a law about spending is false.  The NRA, Sierra Club and so on were not prohibited from making ads at all.  If they put up an ad saying “Please teach your children firearm safety,” or “recycle your trash,” that would not trigger the ban.  The ban was triggered by what they said.  If that was constitutional, then the New York Times could be validly silenced in the pre-Internet age by a law that said it was illegal to purchase ink and paper for the purpose of publishing a criticism of a sitting president.  That’s not how the First Amendment works.

Returning to Presidential suppression of speech, Obama himself chilled speech.  Here’s Obama saying that “The future must not belong to those who would slander the prophet of Islam:”

In isolation that doesn’t sound too bad.  But that was right around the time Obama locked up a man for anti-Islamic blasphemy, so it was accompanied with a real threat of consequences.  Yet, where were the hand-wringing editorials even denouncing Obama’s expression?

Most of all, we are gripped in a national moment where the left has decided that it somehow vital to democracy to suppress certain kinds of expression.  So we see, for instance, alleged words by alleged Russians being described as “interfering” with our elections.  First, the hypocrisy involved in this is nothing less than stunning.  How many times to liberals read international newspapers about American politics? How many times do liberals say that we are supposed to let the opinions of the world drive our policy?  This is a pretty useful example.  In the linked article, candidate Barack Obama goes to Germany as part of his campaign to become president of the United States.  The left says that Russian speech is enemy interference, but we actually fought two shooting wars with Germany.  Did a single person screaming about Russian interference today scream about German interference with our American elections?  Of course not, because it would have been silly.

And then we get this glowing paragraph:

Taking what he calls his “improbable journey” to the heart of Europe, Barack Obama succeeded in closing down one of Berlin’s main thoroughfares tonight, luring the city’s young in their tens of thousands to stand in the evening sunshine and hear him spin his dreams of hope, not for America this time, but for the whole world.

And all of that, in the Guardian, which is a British newspaper.  Britain would be another country we had two shooting wars with.  Furthermore, the Guardian is a corporation.  So it is a foreign corporation reporting on a foreign political rally meant to influence the American election of Barack Obama.  And no one on the left batted an eye.

And rightly so.  The idea growing on the left that we have to suppress certain speech to maintain democracy goes against the First Amendment and what the Democrats once claimed to believe.

In terms of the First Amendment, let’s break that down a little more.  The idea that we have to suppress certain speakers to allow others to be heard is directly contrary to the First Amendment.  As the Supreme Court said in Buckley v. Valeo, “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”  A milder version that has been making the rounds is that we need to suppress false speech in order to maintain democracy, but as the Supreme Court has said, “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.”

Free expression is critical to democracy.  The right to make a decision implies the right to make an informed decision, which in turn implies the right of other people to speak freely, so that you can listen to what they say in the process of making such an informed decision.  So the right to vote in an election implies the right to speak freely about an election.  And as for the purported need for gatekeepers who will decide what is the truth, the Supreme Court has said something about that, too:

The First Amendment, said Judge Learned Hand, “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.”

And what case said that?  New York Times v. Sullivan.

Which segues into my other point.  Liberals used to believe this sort of thing, or at least did a better job pretending.  For instance, in New York Times v. Sullivan, that corporation argued that even when it got facts wrong about a public figure, it should still be shielded from suit unless it was proven that they had “knowledge that it was false or with reckless disregard of whether it was false or not.”  In other words, the New York Times fought for the right to get things wrong about people like Donald Trump.  The New York Times was instrumental in setting up precedents that protects so-called fake news from suit.

Further, only two years before the Supreme Court sounded off in New York Times v. Sullivan, President Kennedy offered one of the best defenses of Supreme Court I have ever heard:

We welcome the views of others. We seek a free flow of information across national boundaries and oceans, across iron curtains and stone walls. We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.

Or if you would prefer to hear it, go here.

How did we get here?  How did we get a press that looks the other way at suppression of free speech by Islamofascist barbarians, AntiFA terrorists, the IRS, the Trademark Office and so on, yet howls when the President merely criticizes them—which is itself protected expression under the First Amendment?  How did we go from “We seek a free flow of information across national boundaries and oceans” to “Oh my God, the Russians interfered in our elections by saying things!”

I would be praising this #FreePress protest, if I thought for one moment that this was a sign of a new appreciation of the value of all expression.  But it isn’t.  It is selective and hypocritical—and hypocrisy is often a sign of dishonesty.  It is hard to escape the conclusion that the vast majority of the newspapers involved in the #FreePress protest really only supports freedom of expression by liberal newspapers, and by political allies.

Now, some of the examples I shared of suppression of freedom of expression was noted by conservative media and protested by them.  However, for the most part, they are not the ones participating in the #FreePress protest.  And if they are participating, this post isn’t directed to them.

But for all the people protesting for the #FreePress who didn’t speak up when AntiFA terrorists drove speakers off of college campuses, who let islamofascists bully you into censoring yourselves, who said it was okay to “punch a Nazi,” who supported suffocation of free speech by the IRS and the FEC, who didn’t speak up when an American was locked up for blasphemy, who didn’t speak up when Christians were arrested for handing out leaflets to Arab Americans, I have two words for you: spare me. You don’t believe in Free Expression: you only believe in your expression.  And I will not participate in your savage mockery of freedom.

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My wife and I lost our jobs due to the harassment of convicted terrorist (and adjudicated statutory rapist) Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.