The Limits of Free Speech

The Limits of Free Speech

During the past week, President Donald Trump excited two bitter public controversies by sending and publishing two highly inappropriate and offensively incendiary tweets.

The first of these was aimed at four female members of Congress — each a person of color, and, as members of Congress, each an American citizen. Yet the president said they should go back to the countries from which they came. The second tweet was aimed at Google, which the president argued should be investigated for treason.

The first of these tweets was xenophobic, racist and hateful; the second was just plain ignorant. Together they revealed a level of misguided thinking not heard from the Oval Office since President Richard Nixon’s tapes were revealed.

Here is the backstory.
For months, four very liberal and highly progressive Democratic members of the House of Representatives — known in the media collectively as “the Squad” — have been taunting Trump over their vast ideological differences. The Squad has also argued that Trump is unfit for office and ought to be removed via impeachment.

As well, the Squad has taunted its leader — House Speaker Nancy Pelosi. The speaker has wisely distanced herself and the vast majority of House Democrats from the Squad, and she has not taken their bait.

The president, on the other hand, has taken their bait and attacked them personally. The Squad has views of American domestic and foreign policy seriously at odds with even the liberal base of the Democratic Party — hence Pelosi’s occasional public but gentle chastisements.

Pelosi understands that while these congresswomen have every right to advocate for whatever cause they wish, some of their advocacy, if attributed to the national Democratic Party, could enhance the chances of a Republican victory in 2020.

So, when Trump attacked the individual members of the Squad based on immutable characteristics — race, gender, place of origin — he succeeded in doing what no Democratic presidential candidate has been able to do thus far. He united the Democratic Party around an issue and against himself.

Politics is not beanbag; but if the great painful lesson of American history has taught us anything, it is that there is no place in our public discourse for racial hatred. The Democrats know this. The president apparently doesn’t.

It gets worse.

Now, the House Democrats want to add fuel to this fire by using the power of office to censure the president because of his tweets about the Squad. They have no business doing so. The president’s words — backed up by his incessant repetitions — are condemnable, but they are only words. As Thomas Jefferson once argued, mere words “neither pick my pocket nor break my leg.”

Congress was elected to write laws pursuant to the Constitution. It was not elected to isolate words its members hate and fear and then condemn the speaker of those words.

British parliaments did that to political opponents — domestic and colonial — and our Constitution was written by many who had been the target of parliamentary condemnations and who labored mightily in writing the Constitution and the Bill of Rights so that such events would not happen here.

It gets worse still.

Perhaps to deflect the nation’s attention from his vile intemperance about the Squad, the president tweeted earlier this week — solely on the basis of an unfounded allegation by a high-tech supporter of his — that Google has sold technology to the government of China, and so Google should be investigated by the Department of Justice for treason. Such an absurd and ignorant statement would flunk a high school social studies test.

Treason is the only crime defined in the Constitution. This, too, like the primacy of the freedom of speech, was essentially the colonists ensuring their experience with British kings’ baseless use of “treason” to justify horrific and bloody acts would not happen again

The constitutional definition states that treason shall consist only in waging war against the United States or in providing aid and comfort to its enemies. The actual phrase in the Constitution is “their enemies,” referring collectively to the states.

The courts have defined enemy — or enemies — as any country or group on which the United States has declared war. Moreover, since only an American citizen can be charged with treason — its essence is a violent rejection of citizenship — it is ridiculous and reckless to suggest that a corporation could.

Where does all this leave us?

We have a president who sounds more like a Mafia don than a statesman and a Congress that wants to pick and choose whose offensive words to condemn. Yet even a condemnation of Trump by the House alone — the Senate seems to work for him — would be legally meaningless and also just words.

Any person faithful to the Constitution should disagree with all these words — the president’s words and the censuring congressional words. But like Voltaire, a patriot will defend to the death the right to utter them.

In America, we don’t punish mere words and there are no limits on public free speech — “free” meaning free from government interference.

The whole purpose of the First Amendment command that “Congress shall make no law … abridging the freedom of speech” is to encourage and provoke open, wide, robust, unbridled public utterances about the government and those in it, without fear of any governmental consequences.

Our forebears fought a revolution against a king to assure posterity of that.

Reprinted with the author’s permission.






Trashing the Constitution Again
While the eyes of the political and media classes were on President Donald Trump as he commemorated the 75th anniversary of D-Day in the United Kingdom and in France last week, and then as we all watched for progress in the tariff war Trump started with Mexico, the Department of Justice was quietly trying to persuade a federal judge in Chicago to abandon first principles with respect to citizenship and sentencing.

The DOJ filed a motion asking a federal judge to strip the American citizenship of one Iyman Faris. Faris, who was born in Pakistan, has been a naturalized American citizen since 1994. In 2001, he pleaded guilty to conspiring to blow up the Brooklyn Bridge and was sentenced to 20 years in federal prison. His fellow “conspirators” were FBI agents pretending to be foreign and domestic terrorists willing to work with him.

In other words, there was no real conspiracy. Yet federal prosecutors persuaded Faris and his lawyers that if the surveillance tapes the FBI made of Faris were shown to a jury, they would likely help produce a guilty verdict.
Faris’ case was one of many in the months immediately following the tragedy of 9/11 in which federal agents found vulnerable loners in the United States with Middle Eastern-sounding last names and seduced them into nonexistent plots. Stated differently, the feds created false crimes and then solved them.

If you believe — as Anglo-American jurisprudence taught for 600 years — that crime is harm, then Faris, who caused no harm, is no criminal. He is the victim of similar FBI tactics as those used on candidate Trump in 2015 and 2016.

If you believe that articulating thoughts about committing a crime, thoughts generated by FBI agents who tricked him into believing that they shared those thoughts — as modern-day Anglo-American jurisprudence teaches is criminal — then Faris is guilty of conspiracy to commit acts of terror.

I have argued for years that the government ought not to be in the business of creating crime just to get those it hates and fears off the street. My argument has occasionally received some resonance, but the government continues on this perilous path. Nevertheless, 18 years after Faris’ guilty plea, we are beyond the issue of whether Faris is actually guilty of a crime. We are now confronted with the unthinkable issue of whether he can be punished for a crime that has not yet occurred.

Faris’ 20-year sentence is now nearly complete, since today one ordinarily serves 85% of one’s incarceration in the federal system. Yet the same feds who concocted his so-called crime have now argued to a federal judge that Faris should be stripped of his American citizenship and deported or — worse yet — kept in prison indefinitely, even though he will soon have served his full sentence.

Can the government get away with this?

The short answer: No. The longer answer is that the Trump DOJ, which should be wary of the dangers of false crimes and cutting constitutional corners, has abandoned its professed fidelity to first principles.

What are those principles? This is virgin and dangerous ground that the Trump administration seeks to walk upon. Under current law, one can only lose naturalized citizenship by either the voluntary, knowing, explicit and intentional renunciation of it or by the government proving the existence of knowing and intentional fraud perpetrated upon the government in order to obtain the citizenship.

These naturalized citizenship first principles were reinforced by the Supreme Court as recently as 2017, in a case the feds chose not to address when they made their application for stripping Faris of his citizenship or holding him beyond the duration of his sentence.

There is simply no statute that permits the removal of citizenship out of fear of future harm or for behavior that occurred after the citizenship was granted, and the DOJ knows that. Nor is there any statute that permits incarceration beyond the time sentenced once the sentence has been served. Congress could certainly provide by statute for the removal of citizenship and deportation of foreign-born persons convicted of certain crimes, but such provisions could only apply to crimes committed after Congress expressly provided for the punishments as penalties upon conviction.

As well, the government cannot ask a judge to enhance the penalty for a crime after the crime was committed, without violating due process. And the executive branch cannot on its own constitutionally enhance or threaten to enhance a penalty at any time or for any reason.

Under the doctrine of the separation of powers — which is integral to the Constitution — only Congress can prescribe penalties for violations of federal law, not the executive or judicial branches.
And under basic principles of due process in America, people are not punished because of what the government fears they might do. They may only be constitutionally punished for crimes for which they have lawfully been convicted — once real crimes, but in post-9/11 Orwellian America, regrettably, false crimes as well.

The United States was born as an act of violent political secession from Great Britain. That violence commenced in full after Thomas Jefferson articulated in the Declaration of Independence not only that our rights to due process are natural — he called them “inalienable” — but also that the colonists had had enough of being charged by the Crown for “pretended offenses” that were “foreign to our Constitution.”

The day we move to punish people — citizens or not — because of what the government fears they might do is the day all liberty will be lost. And the day the government punishes not in accordance with the law is the day for abolishing the government.

Reprinted with the author’s permission.

By Andrew P. Napolitano