We’re Having the Wrong Debate on Free Speech: Entitlement and the First Amendment

Insurrectionists in front of the U.S. Capitol Building on January 6, 2021, in Washington. Jon Cherry/Getty Images

Four years too late or better late than never? That is one of the questions being asked and answered in the aftermath of Twitter’s decision to suspend President Donald Trump’s personal Twitter account permanently. Regardless of where you land on the answer to that question, one thing is obvious: we are having the wrong debate on free speech. When a sitting U.S. president is banned permanently or temporarily from the most influential social media platforms, we are entering a new phase in the debate regarding free speech and the First Amendment.

While some of Trump’s supporters will yell “free speech violations,” there is no First Amendment violation here. The First Amendment protects individuals from government, not private, restriction of speech. Put differently, the Constitution prevents the government, not Twitter, from restricting speech. Therefore, to claim that Twitter’s decision to ban Trump from its platform — or Simon & Schuster’s decision to cancel Senator Josh Hawley’s book deal — implicates their First Amendment rights is facetious at best and nefarious at worst. After all, Hawley, a Yale Law School graduate, should know better. Notwithstanding the legal errors in Trump and Hawley’s reasoning, we must ask ourselves why these two white men, and their supporters who stormed the Capitol this week feel so entitled to say what they want, when they want, where they want, and how they want. The answers to these questions lie, in part, in the history and development of First Amendment law.

Free speech principles are indeed a hallmark of American public life, and they are at the foundation of our democracy. So much so that the framers enshrined them in our Constitution as the first of several amendments. Despite the First Amendment’s mythologized origins, the development of free speech law has not been immune from racial and gendered conceptions of expression and its potential harms. Take, for example, the response to the protest turned insurrection at the Capitol this week and the Charlottesville “Unite the Right” rally before that. The government and civil society’s anemic response to these events highlight the unspoken relationship between the First Amendment and race, gender, protest, and violence in American history and culture. The government did not prevent or otherwise regulate these protests that turned into violent riots and insurrection despite evidence suggesting that violence was inevitable. Why?

First, as a matter of history, according to legal theorist and First Amendment scholar, Camille Gear Rich, free speech law was created in a “man’s world,” a white man’s world to be precise, with limited participation by women. First Amendment law is premised on specific racial and gendered cultural assumptions that assume a close relationship between passionate political protest and violence. In other words, we have been conditioned to internalize white male anger and violence as acceptable. As such, the current First Amendment standard appears to have required the Capitol police and/or Charlottesville officials to protect the protestors’ speech up to and until it constituted a call for immediate violence or amounted to a concrete threat of tangible harm. Notwithstanding evidence that this standard had indeed been met by both the Capitol insurrection and the Unite the Right rally before things got deadly, this approach, in effect, subsidizes the interests of “protest masculinity,” an identity construct that sociologists recognize as a threat to minority communities and society more generally.

Second, traditional First Amendment law focuses on individual rights rather than community concerns. This masculine-gendered understanding of free speech has real consequences for the quality of American social and political debate. The U.S. Supreme Court’s decision in R.A.V. v. St. Paul, a case in which a white man and his associates burned a cross in a Black family’s yard, underscores this point. In that case, the Supreme Court held that cross-burning inspired by hate based on “race, color, creed, religion or gender” — put differently, a Klu Klux Klan practice that celebrates white supremacy and intimidates Black and Jewish people — was protected by the First Amendment. It is no wonder then that men like Trump, Hawley, and their insurrectionist supporters feel entitled to say whatever they want, wherever they want, and however, they want, sans private or public consequences.

Until and unless our First Amendment law accommodates more nuanced racial and gender constructs that consider the various duties government has to its citizens, we will continue to subsidize — at democracy’s expense — white supremacists’ ability to storm the Capitol and Trump, Hawley, and other white men’s entitlement to act dangerously without consequences, even in the private sector. Freedom of speech should provide the public space, without government interference, for the private and social regulation of speech based on a collective understanding of social values and the common good. This dynamic process of evaluating, judging, and acting on speech is essential to our democracy and social fabric. That is precisely what Twitter and Simon & Schuster did. We should celebrate it, not condemn it.

We should also use the painful and tragic events that occurred last week to have far richer conversations about improving First Amendment law to ensure full and equal participation by a broader range of speakers. For example, we should consider an approach that permits historically contextualized inquiries into targeted attempts at intimidation. That would better promote the expression of free speech interests that are valuable to democracy, America, and all its people. With this understanding and framework in mind, we can now have the right conversations about free speech.

Omar H. Noureldin is an attorney at Munger, Tolles & Olson LLP and a lecturer-in-law at the USC Gould School of Law, where he teaches constitutional law and theory. Follow him on Twitter @OmarHNoureldin.

Affiliations are provided for identification only; the views expressed are solely that of the author and do not reflect endorsement by his employers.

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Omar Noureldin

Reflections on law, politics, faith, and tennis from an attorney, policy wonk, community organizer, and law professor at the USC Gold School of Law