Voters are fortunate to have seen a decisive presidential winner early Wednesday morning. But, tragically, there was always going to be one clear loser of the November presidential contest: the First Amendment.
Why? Well, in Vice President Kamala Harris and former President Donald Trump, both mainstream political parties ran candidates who, in different ways, have made their contempt for free speech clear over the years.
First, there’s Harris, whose antipathy for the First Amendment dates back to her time as California state attorney general. She used her position to try to force pro-life pregnancy centers to advertise and promote abortion, a double First Amendment whammy of free speech and freedom of religion violations.
Then there’s Harris’s chilling record as vice president in the Biden-Harris administration.
Early on in their tenure, Harris and President Joe Biden tried to establish an Orwellian “Disinformation Governance Board” that was only “paused” after tremendous public backlash. Later, thanks to the “Twitter Files” and “Facebook Files,” we learned about the countless ways the Biden-Harris administration used the full weight of the federal government to pressure social media platforms to take down people’s First Amendment-protected speech about the pandemic and the Biden family — and even tried to censor memes!
Oh, and the Biden-Harris administration signed legislation enacting a de facto ban on TikTok that flagrantly runs afoul of the First Amendment and goes far beyond addressing legitimate national security concerns. While the ban is being litigated, the administration has ironically continued to use, for its own propaganda purposes, the app it said is so dangerous it must be banned.
Harris’s own presidential campaign didn’t appear to be any better on free speech issues than the administration in which she serves. And she basically said “nothing comes to mind” when asked what she would have done differently than Biden as president over the last four years. Her running mate, Gov. Tim Walz (D-MN), repeatedly and incorrectly asserted that “misinformation” and “hate speech” are not protected by the First Amendment, a disqualifying misunderstanding of our fundamental freedoms that would get a high school civics student sent to summer school.
But is Trump much better when it comes to the First Amendment? That’s what some of his loudest supporters, such as Elon Musk and Robert F. Kennedy Jr., claim, even going so far as to argue the election was a “must-win” to preserve free speech in America.
There’s just one problem with this narrative: Trump’s record on the First Amendment is also deeply suspect and inconsistent. Over the years, he has expressed a desire to censor or silence his critics too many times to count, and he has revealed a disdain for the proper boundaries of governmental power when it comes to speech.
For example, Trump has repeatedly called to ban burning the American flag and punish offenders with one year in jail time, in direct violation of Supreme Court precedent that establishes flag-burning as a First Amendment-protected form of free speech. In doing so, he runs against the legacy of conservative legend Supreme Court Justice Antonin Scalia, who signed on to the decision in that case that read, “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Shouldn’t that bother self-described “constitutional conservatives”?
The former president has also repeatedly called to revoke the licenses of media outlets whose coverage he dislikes, from CBS News to NBC News. Most recently, Trump rambled about how, in making editing decisions that flattered Harris, CBS’s 60 Minutes supposedly committed the “Greatest Fraud in Broadcast History” and that, as a result of this editorial decision, “CBS should lose its license, and it should be bid out to the Highest Bidder.” He has also called on numerous occasions to revoke the federal licenses of media outlets such as MSNBC that, as cable news stations, do not have federal licenses.
While Trump and his supporters are free to criticize or boycott media outlets they view as biased or “fake news,” supporting actual government retaliation against them for the contents of their coverage is authoritarian and incompatible with the First Amendment’s protections for a free press.
Still, many Trump supporters cited the Biden-Harris attacks on free expression online as reason to support their candidate. But Trump himself has threatened to “strongly regulate or close down” social media platforms that moderate content in ways he disagrees with, ironically echoing the Biden-Harris approach. He also wants to revoke Section 230, the liability law that enables widespread free expression online across social media platforms in the first place. Trump frames this proposal in pro-free-speech terms, but the ironic result of removing Section 230’s liability protections for social media platforms is that they would have to censor more content, not less.
And, while the Biden-Harris administration did it to a much greater extent, Trump also attempted to use the federal government to pressure tech companies and get people’s First Amendment speech suppressed online. In 2019, the Trump administration even reportedly lobbied Twitter to take down a celebrity’s tweet that referred to Trump as a “pussy ass b****.”
None of these pesky facts line up with the image many Trump supporters have of the former president as some champion of the First Amendment.
The only presidential candidate whose views seem consistently supportive of free speech was Libertarian Party nominee Chase Oliver, who, predictably, ended up primarily as an option for protest votes rather than a serious contender.
Of course, most people aren’t single-issue voters. But if there’s a single issue people should care about, it is the First Amendment and our freedom of speech; after all, there’s a reason our Founding Fathers put it first in the Bill of Rights.
There’s no freedom more central to our system of government and our humanity than the ability to speak our minds without censorship. It’s what keeps our government accountable to the people and keeps political disorder at bay because we can settle our differences with words rather than violence. So, in the long run, the fate of our country depends on this freedom’s preservation far more than it did on who prevailed between Trump and Harris.
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Now, some people who earnestly believe in free speech might well have weighed the pros and cons of both Harris’s and Trump’s First Amendment records, decided that one is worse than the other, and voted accordingly. In our unfortunately binary political system, voters do often feel compelled to choose between “the lesser of two evils,” and that simply is the reality in which we live.
But, no matter how people vote as a matter of pragmatism, we must still reckon with the realities facing us. And the indisputable truth is that, in their own ways, both major parties have turned their backs on the First Amendment, leaving people’s free speech rights the biggest loser of this election season.
Brad Polumbo is an independent journalist and host of the Brad vs Everyone podcast.