Presidential Hate Speech: A Veiled Threat of Violence?

The President, at a talk recently, exercised his constitutionally guaranteed freedom of speech by calling the “media” the “enemy of the people.” Using the word “enemy” to describe a vast, constitutionally protected profession caused many worrying questions. It prompted retired Navy Adm. William McRaven, a former Navy SEAL and head of Special Operations Command, to call the President’s comments to be perhaps “the greatest threat to democracy” in his lifetime.

Did the President really mean to use a word and a phrase that under many circumstances would be a call to violence? Was it a form of hate speech, associating everyone in a group, despite their individual differences and constitutionally protected cultural status as citizens, with the “enemy?” By saying what he said, did the President violate his oath of office to “preserve, protect, and defend the Constitution of the United States?” How can you preserve the Constitution when you associate members of the Fourth Estate, the press being considered an integral part of our constitutional culture, with the “enemy?”

I suppose an originalist interpretation of the word “media” might not be taken to apply to members of the “press.” Originalists might argue that the president was talking about something else entirely. But the term media refers to the news gathering and news disseminating functions of the press, in all its contemporary forms, from newspapers, magazines, radio and television to digital age news and commentary streaming into our computers and cell phones. Federal Communications Commission rulings this century have allowed the owners of “the press” to merge with each other into massive media conglomerates, with about six major corporations owning some 90% of all news and entertainment outlets.

So who and what would the enemy “media” be? It’s not a bunch of bearded lefty reporters and small-town editors preaching sedition to innocent proto-conservative Tea Party kids. It’s really a bunch of billionaires and their often handsomely paid talking head wage slaves, each trying to protect their freedom of speech while holding on to their jobs. In calling the media the enemy of the people, the President attacked dominant leaders in his social class of the mega rich. But there’s a horrible chance that the person who could pay for that “enemy” tag is not the personhood of a major media conglomerate but a television intern with a camera at a rally of gun totting partisans, or a reporter doing due diligence asking the tough questions, or news people in our town and state covering a particularly rowdy City Council meeting or legislative session.

If many people in the crowd have been told by their leader that news people are the enemy, not members of a respected, constitutionally-empowered part of American culture, then everyone in the news business better duck for cover. When you call a whole class of people “the enemy” any kind of vile crime becomes possible. The media isn’t particularly popular in American these days anyway. And we know that protesters have been roughed up at the President’s campaign rallies, and that even a reporter from a conservative news outlet was pushed around by the President’s former campaign manager.

And yet, technically, the President had a right to use terms like “enemy.” His speech is protected under the Constitution he vowed “to preserve, protect, and defend.” Or is it? Is the chief defender of the Constitution breaking his oath of office by undermining one of the Constitution’s most fundamental and necessary provisions? By using that incendiary word “enemy,” he is putting the media, whose freedom neither he nor the Congress can abridge, in the same category as terrorist combatants or countries that actively or covertly work against our national interests. Does the President really think that a critical media is committing something close to treason when it doesn’t agree with him?

Labeling the media as “the enemy” is tantamount to inciting violence. And speech that does that can come close to not being protected under the Constitution. In Brandenberg v. Ohio in 1969, the Supreme Court made it clear that only speech that is likely to incite “imminent” lawlessness or violence is prohibited. And the President calling the Press the enemy appears not to do that, nor does most disgusting hate speech, which is also protected by the Constitution indirectly – unless it actually causes immediate acts of violence. As a free speech absolutist, I believe it is more useful – in terms of survival – to know what’s on peoples’ minds than it is to shut them up because you don’t like what they say. The President’s “enemy” remark opens a door to his thinking, his dangerous lack of responsibility, and his twittering political neuroses. Let us hope that it proves not to be an incitement to riot. But tell that to the young reporter or the old columnist who gets roughed up, beaten, or shot because the President said he was “the enemy.”

When the First Amendment says that Congress “shall make no law… abridging the freedom of speech, or of the press” it also means, indirectly, that the president can’t either. Presidents don’t make laws, they implement them. Even executive orders are to be interpreted as giving presidents the tools by which to carry out the will of Congress, not to subvert the legislation it has created and his predecessors have signed into law. The president has immense powers in time of war and very considerable powers in times emergency. After 9/11 President Bush signed an executive order declaring that the United States was, indeed, in a state of emergency. And President Obama extended that order. But nowhere in the Constitution is the president given the authority to impose martial law and takeover the Congress and the Supreme Court, though the Constitution does permit him to suspend habeas corpus, and arrest people without the legal protections of the 6^th Amendment, as President Lincoln did in the Civil War. The specter of Japanese Americans interred during World War II can never quite be overlooked by groups who are considered dangerous, or rumored to be dangerous, or who have been declared informally in a speech to be the “enemy of the American people.”

The founders saw freedom of speech and of the press as essential to preserving democracy from the maniacal egos of tyrants, the cunning criminality of elected con artists, the self-serving judgments of bureaucrats, and the outrageous tomfoolery of the power hungry, the self-inflated, and those who hold the crackpot notion that they, alone, are more important than the constitutional culture that it is their major duty to uphold.

Without a well-respected, even venerated, constitutionally protected freedom of speech, piranha politicians can do horrible things to people just for speaking up. Take the case of the Russian poet Osip Mendelstam who died of exposure, or was executed, in a Soviet gulag near Vladivostok in 1938. His crime? He wrote a poem about Joe Stalin that the dictator didn’t like. Called the Stalin Epigram, the poem ridicules Stalin’s moustache as being like a “cucaracha’s” and says near the end that “every killing for him is a delight.”

Because of the First Amendment, “today several thousand newspapers and millions of websites and bloggers based in the U.S. will write about what is going on in their communities and in some cases, how they feel about it. Nobody will end the day in jail because of what he’s written,” says The First Amendment Center. But that hasn’t always been the case here. A newspaper printer and publisher in New York in 1734-35, Peter Zenger, was tossed in jail for eight months because he criticized the Governor of New York. His freedom of speech was defended way before the Constitution was ratified. As one of the signers of the Constitution put it, “The trial of Zenger …was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America.”

The Alien and Sedition Acts of 1798 set out jail terms for anyone writing in opposition of “any law of the United States” or publishing “false, scandalous, and malicious writing” about the President or Congress. President Jefferson allowed the acts to expire in 1801. The Sedition Act of 1918 made it a crime to write in opposition of the draft in WWI. While prohibiting something from being published, known as prior restraint, has been ruled unconstitutional, the Smith Act of 1940 was a draconian measure that forbad criticizing the government, or “knowingly or willfully” to “advocate, abet, advise or teach the duty, necessity, desirability or propriety of overthrowing the Government of the United States…by force or violence…” The Smith Act, while never repealed, has frequently had cases tried under its jurisdiction declared unconstitutional by the Supreme Court. It still formed the legal basis of the one of the most infamous periods of American history, the McCarthy era and the reign of the House UnAmerican Activities Committee (HUAC).

In attacking the media, is the President suppressing the free speech of the writers of thousands of newspapers, websites, and blogs through demonizing and intimidation? But is that all he is attacking? Or is he also going after what his chief strategist Steve Bannon calls the “corporatist, globalist media?” And why would he do such a thing? Why would he attack the media moguls of his own financial class when they gave him hundreds of millions of dollars of what amounted to free advertising in their preferential coverage during the election? In America today, roughly 90% of the media is owned by six mammoth corporations – CBS Corporation, Comcast, 21^st Century Fox, The Walt Disney Company, Time Warner, and Viacom. Most of the major news outlets we are all familiar with are owned by the six behemoths. The stragglers, like Rush Limbaugh, Sean Hannity, and Glenn Beck are owned by iHeartMedia (Clear Channel Communications), American Media which owns the National Enquirer, National Examiner, Globe Magazine, Star Magazine, and big companies like Gannett which owns USA Today, the Arizona Republic, and many other newspapers in major cities around the country. Are these the “enemies of the American people” he is talking about?

As sacred as the First Amendment is, it has been horrendously abused in this century by a Supreme Court decision in 2010 known as “Citizens United,” in which not only entrenched the ridiculous and insulting notion of corporations sharing the protections of individual people because they are considered “corporate persons,” but which allows corporations and unions to exercise their freedom of speech through the spending of unlimited and untraceable money for political propaganda. Such propaganda almost always drowns out the free speech of real people with real voices and little money.

Just like a corporation, a union, or a private citizen, the President has the right to his own freedom of speech. But he also has a duty to the oath of office he took on inauguration day when he vowed to do everything he can to safeguard the Constitution. When his rights and his duties come into conflict in the performance of the office of President, it is in the best interest of the people of this country that his duty should prevail. If it doesn’t, that leaves all the rights each of us assume are ours by law at the mercy of an executive toying with the idea that he is not only endowed with power, but with power which we, as citizens, cannot object to, counter, check, question, or legally resist.

*Nullius in verba: take nobody’s word for it