On a long vacation road trip years ago, with two young children squabbling in the back seat over some perceived slight, my wife coined an expression that lives on decades later in our family. In exasperation she told them, “You have lost the privilege to speak!” It worked — we rode for miles in welcome silence. Years later, our grown children still laugh as they remember those words as the “final ultimatum” from Mom.
Free speech is like that. While it is our right, protected by the Constitution, there is no guarantee that we can speak without consequence. President Donald Trump has a right to say whatever he likes, no matter how offensive or inappropriate. That’s the “free speech” part. There are limits as he found out after his speech urging supporters to take their fight to the Capitol. He’s also discovered he doesn’t have a right to unfettered access across every media outlet to speak without consequence.
Trump, like everyone else, is limited in what he can freely say. The Supreme Court spelled it out clearly in 1964’s Brandenburg v. Ohio ruling. A white supremacist said the state had unfairly found him guilty of inflammatory speech. Brandenburg claimed he had the right to publicly castigate Blacks and Jews. He talked about the revenge he planned to take on Congress and the Supreme Court for not protecting white people, and discussed organizing a march on Washington, D.C. on the Fourth of July.
Brandenburg’s conviction was overturned in a landmark First Amendment case. The Court held that the government cannot punish inflammatory speech unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg’s clearly offensive words were still protected speech because he did not actually incite action.
Prosecutors will use similar language to test whether charges could be brought against Donald Trump and others for inciting the assault at the Capitol.
Many conservatives lament that their free speech is being unfairly muzzled by the media and “Big Tech.” Those private companies decide which speech they want to amplify and which to ignore, not the government. In the media’s case, conservatives have a point — they likely won’t see their views fairly represented on MSNBC or CNN or other “liberal” sources. But the more highly viewed Fox News certainly gives conservatives a platform, as do hundreds of websites, the Wall Street Journal opinion page and Facebook among many others.
Which brings us to Big Tech and its ability to censor speech it doesn’t like. Yes, those companies can and do. As social media platforms have grown, their decisions about permissible speech are rarely consistent, evenhanded or timely. But they still control their platform and users agree to the terms of service. Is this surprising to anyone? Businesses have long set conditions on customers. If your words are uncivil or dangerous, expect you may be banned from posting on social media. The Constitution does not guarantee your right to be on Twitter.
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There are millions of conservative voices still on social media. The Big Tech companies may all have banned Trump about the same time, but political censorship is not their real motivation. They are protecting their businesses from being used to distribute lies and advocate an overthrow of the government. In other times, this ban might even be called patriotic.
Trump apparently never learned what our children did years ago in the back seat: Speech is free but not inconsequential. As our crazy national road trip continues, there is a welcome silence if only for a few miles.
John Altenbern is President of CJ & N, Inc., a media market research and consulting firm based in Cedar Rapids. He holds degrees in journalism, political science and an MBA from the University of Iowa.