Americans used to take for granted that one person’s rights leave off when they start trampling on the rights of others. We should remember this now when it comes to what might be labelled free speech. Our Constitution came to guarantee Freedom of Speech in the First Amendment because the founders wanted a robust exchange of ideas and information. But as the great conservative icon Judge Robert Bork said, neither the founders nor the fundamentals support a First Amendment that protects people who inspire violence and who spew lies about vital public matters.
Consider the poor citizens of Springfield, Ohio. After Republican vice-presidential candidate and Ohio senator J.D. Vance started lying about Haitian immigrants eating city residents’ dogs and cats—along with the odd duck apparently—former President Donald Trump took up the cry. When challenged for lying, the Trump-Vance team doubled down. Trump even started posting memes about the lies. The result is a city under siege with bomb threats and other mayhem. City offices and schools were shuttered, and the city’s annual cultural festival was canceled. Finally, Vance admitted he was lying but said the lies were a good thing ,”so that the American media actually pays attention to the suffering of the American people.” What suffering? Having their dogs, cats, and ducks eaten? Vance just admitted he made that up. He should point to the real suffering or stay silent.
The Constitution, it has been noted, is not a suicide pact. Free speech by our highest public officials shouldn’t leave people cowering in their homes. Indeed, since the immortal words of Justice Oliver Wendell Holmes in 1919 we have all known that free speech doesn’t give you the right to shout fire in a crowded theater. It should also not give you the right to support your arguments against illegal immigrants by attacking the legal immigrants in Springfield with lies that stoke racial tension. Bomb threats in Springfield have only created even more worry about the safety of children in school at a time when 383,000 American students have been exposed to school shootings since 1999.
A Canada goose with an injured wing stands on the bank of Peanut Pond at Snyder Park on Sept. 16, in Springfield, Ohio.
Luke Sharrett/Getty Images
Indeed, the similarly wrong-headed views imposed on the Second Amendment are putting us at risk of random violence every day. Donald Trump may swagger around after the second failed attempt on his life, but is this the America he wants? Violence bolstered by AR-15s and AK-47s in the hands of pretty much anyone who wants them?
Neither the First nor the Second Amendment should be seen as absolute because neither of the virtues they protect are absolute. No sane person wants total freedom to do what they like with a gun. And we protect free speech so that the truth may set us free, may right wrongs, may improve our government. When it comes to lies like those being told by Trump and Vance, no such sanctuary should be afforded. The law of defamation of character has long protected people from the damage that lies can do to a person’s reputation. Accusing people of stealing and eating each other’s pets is likely pretty damaging to a person’s reputation.
I wouldn’t be surprised to find every Haitian immigrant in Springfield feeling targeted by some Americans who have simply ceased to care whether Vance and Trump are telling the truth anymore—so long as they play to their hatreds. I have never seen a defamation class action in court, but why shouldn’t the courts recognize one so that the Trump-Vance lies can be stopped and the damage compensated for out of the pockets of the wrongdoers? Here a vital factor has already been admitted—the lies were intentional. Under Supreme Court precedent, that’s enough to sharply reduce any protection the First Amendment might afford.
And what about the city where normal life has come to a halt? Is it helpless in the face of lies that are making it the target of violent threats? It shouldn’t be, the Supreme Court has long permitted restrictions on speech that threatens to disrupt the operations of government. Courts should be capable of protecting the city of Springfield by enjoining Trump from continuing to broadcast the lie.
The Supreme Court can make clear that Second Amendment rights also aren’t absolute. It already upheld restrictions on gun possession by people under restraining orders. It could follow up by actively taking up restrictions on powerful semi-automatic weapons like the AR-15 and the AK-47 and explaining to the nation why they are constitutional. That would send a message that the Supreme Court still knows the Constitution isn’t a suicide pact.
Until the courts have the courage to act on matters like these, reckless politicians may continue to believe that the right of free speech and the right to bear arms are more important than the two most important rights the Constitution protects—life and liberty.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.
The views expressed in this article are the writer’s own.
