Trump’s Divisive Speech Puts the First Amendment at Risk

Americans’ commitment to unfettered free speech is starting to fray. If Trump can’t control his words, those around him have a responsibility to keep hate speech in check.

By Suzanne Nossel, the CEO of PEN America.
An estimated 4,000 people gather to march for solidarity during President Donald Trump's visit to Pittsburgh in the wake of a mass shooting at a synagogue on Oct. 30. (Jeff Swensen/Getty Images)
An estimated 4,000 people gather to march for solidarity during President Donald Trump's visit to Pittsburgh in the wake of a mass shooting at a synagogue on Oct. 30. (Jeff Swensen/Getty Images)

The relationship between President Donald Trump’s rabble-rousing rants and the recent spate of hate-fueled plots and violent attacks poses a quandary for Americans. Under the U.S. Constitution’s First Amendment, Trump’s hectoring of the media, barbs at racial and religious minorities, and even his praise for an assault on a journalist are all constitutionally protected forms of speech.

After all, hateful speech that is illegal in Canada and Europe, including racial slurs, brazen bias, and Holocaust denial, is allowed in the United States. Free speech advocates celebrate that the U.S. Constitution protects more speech than that of any other nation. American democracy is based on the belief that one can combat pernicious expression with education, argument, and evidence rather than censorship. While the First Amendment does not protect all speech, the categories it carves out—including libel, slander, threats, pervasive harassment, false shouts of “fire in a crowded theater” that intentionally cause deadly panic—are narrowly drawn, contoured by years of jurisprudence geared toward minimizing encroachments on speech.

But the consensus underpinning that expansive approach to free speech is fraying, and last week’s pipe bombs and Saturday’s homicidal rampage at a Pittsburgh synagogue threaten to further unravel it. When the president’s derogatory rhetoric sparks hostility and even violence, it lays bare a dark side to the United States’ proud liberal approach to speech. The U.S. system offers no obvious way (short of voting a president out of office after four years) to contain a politician whose verbal demonization of rivals and the press provides what some citizens view as a White House invitation to lash out violently against their perceived opponents.

With divisive political rhetoric stoking violent impulses, Americans’ collective faith in free speech is being shaken. Many living in the United States are beginning to ask whether instead of protections for speech, we may now need protections from it. For free speech to survive this reckoning intact, the United States will need to prove that its current system of voluntary constraints on speech—operating through an informal scaffold of taboos, social conventions, appeals to conscientiousness and civility, and a willingness to dismiss, tune out, and ignore— still works and that it can effectively disrupt the chain reaction now linking inflammatory words to dangerous actions.

The First Amendment is under pressure on multiple fronts. Some racial justice advocates argue that to achieve equality, the government must ban speech that persecutes and dehumanizes minorities. After violent white supremacists descended on Charlottesville, Virginia, in August 2017, and with hate crimes on the rise, rampant online trolling, and a president who offers succor to white supremacists, it has become harder to argue that the U.S. system offers adequate safeguards against the harms of hateful speech. In the wake of Charlottesville, the American Civil Liberties Union has reconsidered defending the assembly rights of white supremacists, adopting a delicate balancing test that weighs the pro-speech, viewpoint neutral stance it took decades ago in defending Nazis who marched in Skokie, Illinois, against present-day considerations, including racial justice.

Some U.S. constitutional theorists are now drawing attention to Canadian and European approaches that delimit free speech to exclude bigotry. While it is fair to acknowledge that those systems have found ways to remain free while excluding some of the most noxious forms of speech, it’s not clear that the solutions they offer improve upon the formulation set out in the U.S. Constitution. Racial and religious minorities don’t necessarily feel better treated in Europe than in the United States, and the fine distinctions required to parse what sort of speech crosses the line involve complex questions of intent, history, foresight, cultural context, and more.

The European Court of Human Rights’ decision last week to convict an Austrian woman for referring to the Prophet Mohammed’s marriage to a 6-year-old as pedophilia exemplifies the problem. The court found that the statements in question were “capable of arousing justified indignation.” In the United States in 2018, banning speech capable of arousing justified indignation would effectively shut down the country’s entire political debate.

The U.S. Supreme Court’s exacting approach to incitement is also coming under scrutiny. Whereas international law prohibits incitement to discrimination and hostility, U.S. law recognizes only incitement to “imminent violence” as unlawful—words such as “go shove him to the ground” that direct others to commit violence immediately. A federal appeals court in Kentucky recently rejected an incitement claim brought by protesters challenging the president’s goading of the crowd at a 2016 campaign rally, urging them to eject the demonstrators. The court found that because then-candidate Trump didn’t “specifically advocate” violence, his words fell short of incitement and were thus protected.

No matter how offensive, Trump’s more recent vitriol at rallies, including praise for a violent attack on a journalist and his chuckling over chants to lock up the Jewish philanthropist George Soros (who had days earlier been the victim of an attempted pipe bomb attack), is even further from meeting the legal definition of prohibited incitement. Under U.S. law, violence can be contemplated, praised, and even valorized as long as it is not directly encouraged in an immediate sense.

Trump cannot be held legally responsible for the actions of murderous, unhinged individuals. Noxious and bigoted attacks are hardly unique to the Trump era. But the president is abdicating his role in two key respects that are eroding confidence not just in his leadership or his ability to keep the country safe but also in the U.S. system of expansive protections for speech.

First, Trump willfully shirks a duty of care to consider how his words will be interpreted and what consequences they could foreseeably trigger. As president, Trump’s voice is loud and far-reaching. Accusations and insults that might be dismissed as satirical, hyperbolic, or off-the-cuff if made by an ordinary citizen bear the heft of the presidency. Trump and his close associates have steadfastly denied this responsibility, defending a wanton approach to speech that is morally, even if not legally, culpable. Most presidents take pains to choose their words carefully, especially on inflammatory topics. Trump revels in spontaneity and delights in fomenting hostility toward his foes.

Second, Trump has refused to use his office to tamp down division in society. In 2010 and again in 2012, when the Florida pastor Terry Jones threatened to burn the Quran, an act certain to prompt mayhem, Barack Obama’s administration forcefully condemned the provocation even while affirming the pastor’s First Amendment rights. Top cabinet officials voiced support for Muslims and blunted the force of the hostile display by using their authority to signify that it was a renegade act by a private citizen and that the U.S. government rejected it.

Obama’s rendition of “Amazing Grace” at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, after the shooting there and George W. Bush’s visit to a Washington mosque six days after 9/11 helped targeted populations feel less ostracized and to bring the country together. That’s the role of a leader amid crisis. Trump is incapable of such gestures, and his periodic scripted attempts to voice compassion are drowned out by manifestly more authentic expressions of animus.

The United States’ broad protections of free speech hinge not on the idea that speech is innocuous but rather that its harms are best addressed through means other than prohibition and punishment. That much of Trump’s noxious speech is constitutionally permissible doesn’t mean that citizens are powerless to combat it. On the contrary, it means that U.S. citizens must do something about it lest the system of broad legal protections for speech breaks down.

Realistically, as long as he remains in office, there may be no one who can control what Trump says. Given that, an outsized responsibility falls on all those with a pulpit, podium, or a Twitter following to exercise their own duty of care to avoid words that inflict wounds, inspire vitriol, or galvanize hateful impulses. Those surrounding the president—his aides, cabinet officers, family, and political allies—must recognize that they condone his recklessness unless they persuasively disavow it.

Their silence, equivocations, and justifications make it impossible to dismiss Trump’s speech as something short of a reflection of government policy. They bear the burden to convince Americans that such speech is errant and unacceptable and can fulfill that obligation only by swiftly, unequivocally, and publicly denouncing all instances of hateful, offensive speech by the president, including inference and innuendo.

To stop Americans from concluding that broad constitutional protections for free speech have become too dangerous to sustain, it falls to all those in a position to lead to prove that the United States is willing and able to keep such hateful speech in check.

Suzanne Nossel is the CEO of PEN America. She was formerly deputy assistant secretary of state for international organizations at the U.S. State Department. Twitter: @SuzanneNossel