Opinion: Trump’s Abuse of First Amendment as Racist Club Aligns with Republican, Right-Wing Supreme Court Practices

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While Donald Trump has been involved in a dispute with Twitter, speciously and ignorantly crying that the social media company violated his First Amendment rights, uprisings and mass actions protesting the police murders of George Floyd and Breonna Taylor—and the pervasive devaluing of Black lives generally–have mounted.

The simultaneity of these events may be just coincidence, but their juxtaposition is nonetheless revealing in terms of Trump’s—and the Republican’s—strategy of deploying the First Amendment as an ideological club not actually to enable the free speech that necessarily underpins democracy but rather to amplify Trump’s own voice while silencing others, mainly those of his opposition and the American majority, especially people of color.

This contemporary juxtaposition highlights Trump’s rhetorical misuse of the First Amendment to fuel his racist agenda and stoke his base’s sensitivities to his divisive agenda as he moves into campaign mode ahead of November 2020.

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Think back to Trump’s indictment of former San Francisco Forty-Niner quarterback Colin Kaepernick and other NFL players who knelt for the National Anthem.

He viewed them as un-American, just as he views immigrants, deserving deportation: “You have to stand proudly for the national anthem or you shouldn’t be playing, you shouldn’t be there, maybe you shouldn’t be in the country,” Trump notoriously said.

He also said, during that controversy, “Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now, out, he’s fired. He’s fired.”

And also: “That’s a total disrespect of our heritage. That’s a total disrespect of everything that we stand for.”

Kaepernick was, of course, for all intents and purposes, fired. Just a couple of African American police officers in Chicago were reprimanded for kneeling in their police station and as ESPN’s Jemele Hill was suspended for comments she made to fans urging them to boycott companies that advertise with the Dallas Cowboys after Jerry Jones threatened to bench players who knelt for the anthem.

And what heritage are these protesters disrespecting? What is that “we” stand for? Or, rather, who does Trump think is “we”?

I guess people of color, whom he hates, and anyone else who disagrees with him.

I don’t remember Trump standing up for Julie Briskman’s First Amendment rights.

Remember her?

Briskman, a marketing executive at Akima, a government contracting firm, was fired for flipping off President Trump’s motorcade while riding her bike. She wasn’t even at work. Because she had been photographed and the photograph had been published with great popularity, she identified herself to her company and was promptly called into a room and fired for violating code-of-conduct policies. Clearly, she did not have the right to express herself as she chooses, even outside of the workplace, without consequences for her employment.

And, sadly, as I’ve explained in detail elsewhere, Americans do not enjoy the rights of free speech in the workplace, a problem in itself.

Trump’s First Amendment rights weren’t violated either.

But this isn’t in any factual or legal sense about the First Amendment. It’s about the exploitation of the First Amendment, playing upon America’s ignorance of what’s really in the Constitution.

The First Amendment is an authoritarian weapon, and has been weaponized as such even by the right-wing dominated Supreme Court.

Justice Elena Kagan’s powerful dissent in the Supreme Court’s decision in the Janus case in summer 2018 warned Americans about this exploitation, referring at the time specifically to Justice Samuel Alito’s absolute distortion of the First Amendment to rule that public sector unions could no longer charge agency fees or “fair share” dues to non-members who nonetheless benefit from union representation. He argued it violated employees’ First Amendment rights. Of course, as we’ve seen, free speech is not a right in the workplace, and as I’ve explained elsewhere, the ruling actually silenced workers’ voice and undermined workplace democracy by undermining the strength of unions.  The ruling served to diminish labor’s ability to represent itself and have a voice in the workplace and by extension in the larger national political conversation.

Kagan was most succinct and incisive in her dissent when she accused the majority in the court of “turning the First Amendment into a sword.” She astutely points out, “Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it).” Thus, she viewed the Janus ruling and its leveraging of the First Amendment as opening up possibilities for instituting repressive measures rather promoting freedom, writing, “The majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices.” She concludes re-asserting that the First Amendment “was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.”

Similarly, Trump has no interest in defending the First Amendment. He has an interest in silencing his opposition and fortifying his ability to widely broadcast lie after damaging lie without being fact-checked by Twitter.

As Jason Easley just recently reported for PoliticusUsa, Trump in fact threatened violence on those protesting outside the White House in response to the ongoing state killings of African Americans.

He does not celebrate American values or the Constitution.  He is both ignorant and contemptuous of them.

Given the sad truth that Americans do not enjoy the rights of free speech in the workplace, maybe Trump’s employer can find some way to address his ignorant and dangerous speech.

Who’s his boss? Oh, that’s us.

Well, let’s fire him in November.