Among the many delusions that have characterized the last four years of the Trump Administration — culminating in the shocking Capitol siege whose continuing fallout includes the death of Capitol Police officer Brian Sicknick — none has been more pernicious than our misunderstanding of the First Amendment and its guarantees of free speech.
The First Amendment guarantees the protection of your speech from government censorship. It does not, however, entitle you to say just anything. So the proverbial example: You can’t yell “fire” in a crowded movie theater that is not on fire just for kicks.
And if a company, which is in business to make money, decides that the expression of your political beliefs violates company policy and fires you, well, that company is within its rights as a private corporation. Conservatives have had no trouble with the NFL blackballing Colin Kaepernick. And they probably have no trouble with the Capitol insurrectionists being fired from their jobs. But they’re mad at Twitter for banning President Donald J. Trump for life after all the foment he’s spewed? And Missouri Sen. Josh Hawley — who thought he’d continue to contest the presidential election after the attempted Capitol coup as a way to position himself for the 2024 race — thinks Simon & Schuster is playing “cancel culture” with him for not publishing his tech book? Sorry, but that doesn’t fly.
First, a lesson on “cancel culture.” Let’s say you think a movie director acted inappropriately with women, so you boycott his movies. Fair enough. Doesn’t mean he isn’t talented or that his movies aren’t good. But for you, his behavior outweighs his ability. That’s your choice. You aren’t stopping him from making movies, although if enough like-minded people get together, he’s out of a career.
And that brings me to my second point here, which is that he would be out of a career, because the movies are a business. Similarly, Twitter and Simon & Schuster are media companies, and reactionary words and deeds just don’t sell. By the same token, the companies themselves just can’t say and publish anything. Notice how fast Fox dropped the claims against Dominion Voting and its alleged role in the “rigged” presidential election after Dominion threatened to sue. As it is, Dominion is suing Trump lawyer Sidney Powell, who helped instigate the claims, for $1.3 billion. It’s a defamation suit that will go to trial — Dominion has said it has no interest in settling out of court — and it’s one that Dominion has a very good chance of winning.
It’s hard to prove defamation in the United States, particularly if you’re famous, because you have to prove what the person said (slander) or wrote (libel) about you is untruthful and, further, that this person did so maliciously. (This is the famous absent malice clause.)
Powell has doubled down on her claims, which has always worked for Trump, who once famously remarked that he could kill someone on Fifth Avenue and get away with it. But Trump has been banned from social media, and he’s about to be impeached, again, and probably convicted under the new Democratic Congress, which would not only take away his presidential perks but would bar him from running for office in the future. His brand has been irrevocably tarnished. Yes, yes, President Richard M. Nixon reinvented himself as an elder statesman. But Nixon had real ability and, in any event, there are no public buildings named after him.
With the assault on our democratic republic and human beings that played out in real time, the notion of Trump metaphorically getting away with murder no longer appears viable.