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
The difference? To enjoy the cinematic treatment of the supernatural requires something other than evidence of its possibility. Instead, all one needs is to suspend logic. On the other hand, identifying with a mother trapped in a VW Beetle, trying to protect her son from a foaming at the mouth St. Bernard, is not predicated on a moratorium on common sense. Anyone with a limbic system, the part of the brain that processes emotion, knows creatures and people like Cujo (portrayed by four St. Bernards, a black Labrador-Great Dane mix in a St. Bernard costume and stuntman Gary Morgan) and Annie Wilkes (Kathy Bates) exist in our world.
The same is true of the record turnout. Any parent has experienced the consequences of trying to modify behavior by telling a child they cannot do something. That is Dr. Spock 101. So, when GOP officials in several states did everything they could to discourage voters they knew would vote against Trump’s re-election, the response was as logical as a three year old drawing on a wall despite exhortations to the contrary. How dare you tell me what I cannot do! I’ll show you! And show us they did. Eighty-one million of them.
Which brings me to the second instance in which Russia can be instructive, in this case, for Republicans who want to take back their party from the Trump insurgency. They need only draw on efforts by Russian opposition leader Aleksei Navalny to expose Putin’s corruption and abuse of power. The difference between the situation in Russia and the GOP is the emergence of a champion who is willing to speak truth to power. Or as the NRA president Wayne LaPierre might say, “The only thing that can stop a movement with a bad leader is a movement with a good leader.”
My nominee is Arizona governor Douglas A. Ducey, Jr. Though Ducey has neither been poisoned or jailed for refusing to join Trump’s conspiracy to overture the 2020 election, he is now a persona non grata within the GOP, having been censured by the Arizona Republican Party. Up until November 3rd, Ducey had been a fervent Trump supporter, campaigned with him and even accompanied him to “the wall.”
On September 11, 2001, 40 individuals aboard United Flight #93, after becoming aware of the attacks on the World Trade Center and Pentagon, decided they had to stop any further incursion. At the time, they did not know the intended target was the U.S. Capitol, but were convinced it was one other major symbol of America that would be next. With that knowledge, 33 year-old Flint, Michigan native Todd Beamer gave the command, “Let’s roll.” Beamer and his fellow passengers will forever be remembered as heroes. A high school in Federal Way, Washington bears his name and is dedicated as a perpetual reminder of the bravery and sacrifice of those who chose country over self.
Hawley turns to the crowd, raises his left fist and might as well have said, “Let’s roll.” Except this time, the Senator was urging the passengers on Trump Flight #45 to take command of the plane and make sure it struck its target. After the damage was done, did Hawley admit he may have crossed the line between personal interests and his oath of office? Did he at least try to de-escalate the tension by telling those he urged on just hours before, “I’m with you, but this is not the way to do it.” No! Instead he took to the floor during a joint session of Congress and again affirmed, despite all evidence to the contrary, the insurgents’ “cause was just.” You know, the same rationale others have used to pass Jim Crow legislation, enforce school segregation, deny black citizens the right to vote and honor generals who led armed troops against the United States with statues and by attaching their names to military bases, schools and other public buildings.