NOTE: This is a response to Kyle Long's piece "Ban Trump from Indy."
A caveat: We at NUVO love us some Kyle Long. He’s been providing linkages for the publication for years, finding the nexus of music and human rights and trying to understand how those two inform one another. He’s done it brilliantly — however, this week’s leap from metal and hip-hop lyrics to The Donald is problematic.
Simply put, the idea that a city could — or should — ban an appearance by a political candidate is demonstrably wrong.
It would also set a dangerous precedent.
The same notion was floated by the faculty, staff and students of the University of Illinois Chicago
, the campus that was to host a Trump rally last weekend before protestors showed up in vast numbers and The Donald pulled out.
The premise is flawed, but don’t take my word for it — I consulted Dr. David Orentlicher, a constitutional expert at the IU McKinney School of Law.
Orentlicher says, “From a First Amendment standpoint … it’s a pretty strict standard.” Said speech, for it to be actionable — to fall into the category of “yelling fire in a crowded theater,” the moment when speech can be limited — is defined by the Supreme Court as speech that will cause “imminent lawless action.”
There’s an argument to be made that Trump may have crossed that very line with some of his statements. One such statement, for example, indicated that should one of Trump’s supporters go ahead and punch a protester, The Donald would pay the aggressor’s legal fees.
Of course, Kyle took the issue a step further, which Orentlicher summed up elegantly:
“But can you prevent him from coming to speak at all?
“This is what’s called ‘prior restraint.’ The courts are more reluctant to take that action. It’s hard to prosecute someone after they’ve spoken, but it’s even harder to prevent them from speaking.”
The SCOTUS standard, as Orentlicher notes, is as follows:
“If the speech will surely result in direct, immediate and irreparable harm — that’s a pretty tough standard.”
The problem for anyone wishing to curtail speech they find disagreeable is that such a standard must apply to all comers. In Long’s universe, what’s to stop a small-town mayor who resides on the political right from preventing a pro-choice march because said mayor believes said demonstration is an expression of violence against the unborn, or some such take? The reaction from choice-leaning folks would be swift and universal. Said mayor would be buried under a pile of lawsuits, and said mayor would lose every one.
In the late ‘70s, the town of Skokie, Illinois, attempted to prevent a march by a group of Nazis through their community — Skokie’s a town with a large Jewish population.
As SCOTUS found in Smith V. Collin, no matter how reprehensible one finds another’s speech, the right to express even the most appalling viewpoint is absolutely protected under the First Amendment of the US. Constitution — and that’s why the Nazis were allowed to rally.
Don’t mis-read this: a counter-demonstration was also allowed, just as such protests should be allowed against the orange, comb-overed, racist “billionaire.” After the cancellation of an appearance in Chicago, Trump squawking that protestors somehow violated his First Amendment rights are as flawed as Long’s argument — you’re not protected from the consequences of your hate speech, as long as the consequences are legal. Boycotts, demonstrations — all are legit and acceptable under the law.
There are members of Indiana’s legislature who would love to see NUVO shuttered. They can yell at us. Call us hippie-dope-smokin’-socialist-communist-homo-lefties. Picket the building and send nasty mail.
Sorry. No dice. We still get to speak, and so does Kyle. As does Trump.
But the bigger problem here is simpler: There's a presupposition that one can know exactly what the Donald will say, and that one knows that his speech will cause violence.
Even if we've all got a pretty good guess, none of us can accuse the Donald of thoughtcrime (apologies to Orwell). The Constitution ensures that.
Trump should come to Indy — and be met with thousands of protestors who would rebuke his message.
Another said it better:
“I disapprove of what you say, but I will defend to the death your right to say it.”
— Beatrice Evelyn Hall