Much of American journalism, which was supposed to revert to its historic role as a check on those in power after Donald Trump left town, is now devoted to shutting down the commercial lifeline of other media. Think of the precedent for the next populist Republican President who might declare pro-choice publications “deadly.”

~Wall Street Journal Editorial Board/January 29, 2021

To the WSJ editorial board, I say, “I don’t have to think about the next populist Republican president.  Did it only take nine days for you to forget the last GOP chief executive declared the media to be ‘the enemy of the people?'”  Furthermore, is the WSJ saying Congress has now ceded its Article I powers under our system of checks and balances to the media?  Or federal courts expect journalists to decide when a president operates outside constitutional boundaries?  NO!  The media is not a check on presidential power.  Its traditional role has been and continues to be a guardian of the truth.  Just this morning, the New York Times fact-checker Linda Qiu reported three instances during his first week in office Joe Biden misrepresented or overhyped empirical data.  Sounds like she’s doing her job.  Likewise, when one media outlet calls out lies from a counterpart or rival outlet they are doing the same thing, fact-checking those who are disseminating information, regardless of the source.

But that’s not what I came here to talk about.  Instead, I wish to focus on how those who hide behind the curtain of “moral equivalency” (sometime referred to as “what about..ism”) have hijacked the First Amendment and represent a greater threat to free speech than those accused of promoting the “cancel culture.”  And it is the responsibility of those who have become the intellectual voice of free speech on college campuses and the press to call out these insurgents.  Not doing so destroys any chance of expanding their audience.

First, a little history.  The free speech movement received national attention with adoption of the Chicago principles, so-called because they are based on the findings of a 2014 report issued by the University of Chicago’s Committee on Freedom of Expression.  (Yes, the same university whose School of Economics continues to push supply-side economics and trickle-down theory as helping the middle class and balancing the federal budget despite 40 years of evidence to the contrary.)  A campaign to promote adoption by other institutions of higher learning has been led by the non-profit Foundation for Individual Rights (FIRE).  As of August 2020, FIRE reports 76 U.S. colleges and universities have “adopted or endorsed the Chicago Statement or a substantially similar statement.”

Before proceeding, let me stipulate there are valid concerns about free speech on college campuses.  But let’s be clear, there is a distinction between controversial opinions and, as Kellyanne Conway would say, “alternative facts.”  One need only read the inscription from John 8:32 above the Upham Hall arch at Miami University where I taught for nine years.  It does NOT say, “You shall know the OPINION, and the OPINION shall set you free.”  It refers to the TRUTH as the source of personal and professional liberation.

In more practical terms, there can be a difference of opinion about whether slavery was an essential factor in the early development of the United States as a commercial power, but you cannot deny there was slavery.  We can argue whether there was justification for the 2003 invasion of Iraq, but Saddam Hussein’s role in 9/11 cannot be part of that conversation.  As so often quoted, the late Senator Daniel Moynihan declared, “You are entitled to your own opinion, but you are not entitled to your own facts.”

Fast forward to two more recent examples.  On January 23rd the Washington Post reported on the backlash when former Trump official Richard Grenell was hired by Carnegie Mellon University.  Reporters Marisa Iati and Lauren Lumpkin wrote, “Criticism grew in November when Grenell falsely claimed that voter fraud had cost Donald Trump a second term.” A lie repeatedly debunked in judicial opinions, statements by state and federal officials and via media investigations.  If FIRE is concerned about the “cancel culture,” you cannot defend someone who repeatedly attempts to cancel the truth about the 2020 election.

And of course there is the king of alternative facts Donald Trump.  To understand the extent to which Trump exceeded any protection under the First Amendment, one must study the history of the phrase, “Shouting fire in a crowded theater.”  I suspect you will be as surprised as I was.

This caveat to the First Amendment protection of free speech appears in Justice Oliver Wendell Holmes, Jr.’s decision on behalf of a unanimous Supreme Court in the 1919 case Schenck v. United States.  The justices found the defendant’s constitutional rights were not violated when he was charged with undermining the war effort (WWI) by opposing the draft.  However, the story does not end there.  I was not aware the decision was partially overturned in 1969 in Brandenburg v. Ohio.  This time the court found “yelling fire” was not enough.  Inflammatory speech (pun intended) had to directly “incite imminent lawless action or produce such action.”

Therefore, for U.S. senators who have not taken their Prevagen in the past 24 days, let me again remind you using the words of GOP outcast Liz Cheney, “The President of the United States summoned the mob, assembled the mob, and lit the flame of this attack.  Everything that followed was his doing.”  And to FIRE and other advocates of the Chicago Principles, I encourage you to read Trump’s January 6 speech to the assembled crowd on the Washington ellipse in its entirety.  Because Trump’s lawyers are going to argue he was only exercising his constitutional right to free speech.  And yet the speech is peppered with debunked claims of voter fraud and conspiracy theories.  He yelled “fire” when there was none, and within an hour, that false claim “produced lawless actions.”

If the leaders of the free speech on campus movement want me to join them when their arguments are valid, they need to push back against those who scream “I have a right to speak out” if the content consists of demonstrable falsehoods or when they act criminally under the Brandenburg v. Ohio doctrine.  Therefore, I look forward to FIRE and other adherents to the Chicago Principles acknowledging the difference between apples and oranges during the impeachment trial or if and when the alleged insurrection conspirators are tried in court.  And issue a public rebuke when Trump’s legal team claims “the big lie” that incited an attack on the U.S. Capitol was merely an exercise of free speech.

To not do so, severely damages their credibility and motivation.  Because the Chicago Principles would undermine academic integrity because they send a message universities and colleges cannot demand faculty, students and guest speakers ground their theories and opinions in empirical evidence.  In which case, Miami University might as well sandblast the words above the Upham Hall arch.

For what it’s worth.
Dr. ESP

It only took two days.  Republicans are already making the moral equivalency argument they are just following Democratic precedent when they say, “Joe Biden is not MY president.  Isn’t that what all you 2016 deniers said about Donald Trump?”  They are half right.  I was proud to say Trump was not MY president.  Primarily because I was not responsible for his becoming the chief executive of the United States.  But more importantly, for more reasons  than I choose not to re-litigate here, I never want anyone, anywhere, anytime to explicitly or implicitly  think I would possibly associate with such an indecent, un-American individual regardless of their station in life.

But here is the difference these one-conspiracy-fits-all advocates miss.  I NEVER said, “Donald Trump is not THE president.”  You do not support impeachment and conviction of someone who is not THE president.  You do not wonder if Mike Pence has enough backbone to save the nation he swears he loves by invoking the 25th Amendment for anyone other than THE president.  You do not spend six months doing everything you can to deny someone a SECOND term unless they are THE president for four years.

I can only surmise Ted Cruz, Josh Hawley, Kevin McCarthy and 146 other GOP members of Congress never watched the Sesame Street segment, “Which one of these is not like the others.”

• Impeachment
• 25th Amendment
• Presidential Elections
• Storming the United States Capitol

Ooh! Ooh!  I KNOW!  The first three are in the Constitution.  The fourth is only grounded in statute, in particular U.S. Code Title 18, Chapter 115, Section 2384 which makes it a crime when “two or more persons … conspire to overthrow, put down, or to destroy by force the Government of the United States … or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.”

During floor debate following the deadly attack on the “People’s House,” GOP speakers were quick to point out they were doing nothing more than their Democratic counterparts in 2000, 2004 and 2016.  True, if you believe telling your spouse he or she has not put on weight is the same as telling 365 million people an international pandemic will magically go away.  Or that 60+ judges, governors, election officials and state legislators of all partisan backgrounds are part of a six state cabal to steal an election.

In 2000 and 2004, objections involved one state each time, Florida and Ohio respectively.  In 2016 the issue was Russian interference in the election. In each case, the objections were raise by one or two lone voices, not a majority of the Democratic caucus. And in all three instances, the Democratic nominee conceded the election.  And none of the challengers invited supporters to come to Washington, D.C. and halt the constitutionally mandated process of counting state-certified slates of electors.

There is one more reason I never accepted Trump as MY president.  Recognition is a two-way street.  As I wrote on December 19, 2016, I acknowledged his constitutional right to sit at the Resolute Desk, but maintained my right not to support the substance of or his approach to governance when he suggested people like me were not real Americans.  At a “victory rally” in Mobile, Alabama two days earlier Trump told the crowd, those who rejected his candidacy were not patriots nor did they really love America.  Donald Trump had the same right to accurately claim I was not ONE of HIS people, but not that I no longer qualified as AN American as a result.

For the learning impaired let me put it this way.  When I look at a banana, I admit it is a fruit, just not MY kind of fruit.  I have to accept the fact it is a banana based on its physical characteristics and the process by which it became a banana.  But I am entitled to my own opinion whether to make one part of my diet.

I have no doubt one of the consequences cable news and on-line outlets will face in coming days is the dilemma when they do not have the benefit of breaking news from the White House multiple times a day.  News media of all stripes will be looking to fill airtime with insights about the state of the nation and citizen attitudes.  There will be occasions when correspondents will ask die-hard Trump voters how they feel about Joe Biden’s performance in office.  In many cases, the response may be, “He’s not MY president.”  How refreshing it would be if the reporter followed up, “I understand.  That’s your prerogative.  But do you recognize him as THE president.”  If the answer is, “No,” will that same reporter then ask, “Then do you believe in democracy and the Constitution?”

As the most trusted man in America Walter Cronkite used to say, “And that’s the way it is.  January 23, 2021.”

For what it’s worth.
Dr. ESP