Women’s Marches, Press Showdowns, and Punching Nazis: First Amendment Values at the Beginning of the Trump Administration

If America were a reality show, the Trump Presidency would be off to an exciting start. Although raucous displays make for good television, they don’t necessarily make for good governance. During Trump’s first week in office, we saw some good and some bad omens for the fate of free speech values under a Trump Administration.



Perhaps most notably, in a gorgeous display of First Amendment rights, people gathered and marched en masse, in all 50 states and every continent around the world, in conjunction with the Women’s March on Washington. Promoted initially as a protest against Trump’s treatment of women, people marched to express love for others and voice opposition to Trump’s views about Muslims, the denial of reproductive and LGBTQ rights, the repeal of Obamacare, and the treatment of minorities by the police.   Attracting record numbers of marchers, these protests were overwhelmingly peaceful and fulfilled the purpose of our First Amendment associational rights- to amplify voices and convince people that they are not alone in their views.

Regardless of whether you support every cause advanced during the March (I, personally, am a bit more moderate than some of the views espoused), these protests, against a sitting President, were a testament to our thriving First Amendment rights. The internal politics, from a free speech values perspective (not as against the government) are complicated. “Free Melania” signs abounded, which, while a humorous exaggeration of calls to release those in actual confinement or captivity, elicited criticism from the left and the right. Perhaps we have lost our ability to take a joke, because humor must be edgy or irreverent in some way, or perhaps the topics we joke about need to be radically shifted.

The marginalization of pro-life women and men at the Women’s March raises interesting questions about which voices are accepted within feminist discourse.  Revoking partnerships with pro-life groups is surely the First Amendment right of the Women’s March, but individuals were spit at and had their signs vandalized, which is not.  In any protest movement, some may react violently or engage in obstructive behavior that does not constitute protected speech, but that illegal action is not a reason to condemn the entire movement.  (States’ bills that have sprung up allowing for draconian tactics to ban protesters from blocking traffic thus raise First Amendment concerns.  Even if these bills target unprotected conduct, they are unconstitutional if proposed in order to block the speech of particular viewpoints (like the BLM movement or anti-Trump protestors) or if they infringe upon too much speech, even in a viewpoint-neutral way.)

Notions of “this is the real America” were uttered frequently at the March, a sentiment that has characterized the general response to Trump.  This sentiment is a nice testament to the diversity of our population, but displays little awareness that the beauty of America is that no one set of substantive views defines what America is.  Indeed, just the day prior, on Inauguration Day, Richard Spencer, leader of the alt-right movement, was sucker punched in the face by a passerby.  The Internet erupted into a debate over whether it is acceptable to punch a Nazi, and, as the Internet does, remixed the punch to music.  Although debate is always good, there is a right answer to this question from a First Amendment perspective.

Punching Richard Spencer is corrosive to free speech values.  There is a First Amendment right to spread this video widely on the Internet, and even to enjoy watching it. However, pluralism- true pluralism, not one side defining its own values as absolutely correct- depends on a sharp distinction between the expression of views and the taking of action, be it physical violence or property destruction.  Societies that believe they are so correct in their views that speech can be met with violence are the ones that are least tolerant of dissent and diversity.  It is unfortunate that the same First Amendment values that have enabled the kind of minority voices that were able to come together in the Women’s March are now being abandoned or considered inapplicable to other voices that don’t support the cause.

Of course, Nazis are different (as is the alt-right, although I believe that movement has material distinctions from Nazi-ism). Most of us have already decided that views of unabashed white supremacists are incorrect; the debate is over. We still must respect the speech/conduct distinction, on principle, to ensure that a debate is over because it has lost, not because it has been forcefully removed from discourse. Decrying punching Nazis is important not just to preserve the safety and autonomy of Spencer, who has been sort of a whiner about the whole thing, but for the rest of us- to ensure we have not become intolerant in our fight to tolerance, to ensure that minority voices don’t become the oppressor once their voice becomes the majority.

Speaking of “the oppressor,” many watching the Trump Presidency unfold have begun to make eerily accurate comparisons between Trump’s relationship to the media and George Orwell’s 1984.  Press Secretary Sean Spicer lied to the media the first time he took the podium in his claim that the Inauguration was the most watched in history.  Kellyanne Conway later doubled down by claiming that Spicer wasn’t lying but presenting “alternative facts.”

Several aspects of this media drama warrant comment. First, sowing distrust for the media while simultaneously lying right to journalists is a strategy that has worked for Trump. This is unfortunate because the media is perhaps our most important First Amendment institution; it fosters the free speech values of government transparency and the search for truth.  Sure, politicians and journalists spin interpretations of events (I wish they would less), but if we cannot accept basis facts, then we will have no barometer for determining how well or how horribly we are doing as a country. Trump will have more leeway to seize power.

That said, the public’s zeal to meme-ifyalternative facts,” overlooked the fact that Chuck Todd never allowed Conway to finish her sentence. The media’s antagonism towards Trump is, in my view, serving his narrative that it is biased. Conducting themselves scrupulously, hiring more diverse staffs, and seeming less like an opponent would help journalists, but we also, as a country, need to trust the vaunted institutions that have processes in place that ensure the accuracy of their reporting.

All told, our free speech values are still well valued in this country, far more than most, and we should be thankful for that.  We should be vigilant, however, about the mounting lack of government transparency and accountability from Trump, and the lack of tolerance for opposing views displayed by those who both favor and oppose Trump.