by William H. Freivogel
The bloody weekend in Charlottesville, Va. has put enormous strain on President Donald Trump, the First Amendment and constitutional checks on the president.
Trump flunked the stress test spectacularly in his unhinged, red-faced rant of a press conference by failing to speak to the nation with the voice of moral authority.
The First Amendment emerged from the weekend tattered, facing new questions about how to protect protests when demonstrators are hateful and armed.
But the separation of powers held up pretty well. An unprecedented number of top Republicans criticized their own party’s president for failing to call out white supremacists and neo-Nazis. And the mainstream media continued to pepper Trump with hard questions in the face of the president’s repeated and false refrain about “fake media.” People would understand his view on Charlottesville, he claimed, “if the press were not fake and were honest.”
Trump wasn’t supposed to answer questions after his Trump Tower event on infrastructure on Tuesday, but he went “rogue,” as one staffer put it. Chief of Staff John Kelly stood glumly to one side.
White House economic adviser Gary Cohn, standing near the president, was “particularly displeased” according to Politico, that “the president launched into a rant about the culpability of the ‘alt-left’ while calling some of the protesters at the white nationalist rally ‘very fine people.’”
Transportation Secretary Elaine Chao, Senate Majority Leader Mitch McConnell’s wife, also was trapped next to Trump. McConnell on Wednesday said simply, “There are no good neo-Nazis.”
Exhibiting the nastiness he shows when backed into a corner, Trump went out of his way to attack Sen. John McCain, R-Az. Asked about McCain’s criticism of the alt-right, Trump shot back, “you mean Sen. McCain who voted against us getting good health care.” Then, in an especially distasteful quip, he added sarcastically, “I’m sure Sen. McCain must know what he’s talking about it.” McCain is under treatment for brain cancer.
By Wednesday the resignations of seven top industry leaders from presidential advisory councils led Trump to dissolve two of them. He didn’t hesitate to blast some of those who quit in protest for failing to bring jobs back to the United States.
Sprinkled throughout the press conference were attacks at the media. “I’m not finished, fake news,” he said when he thought a reporter was interrupting. At another point, he suggested his view would be better understood “if you were honest reporters, which in many cases you are not….”
“Unlike the media before I make a statement I like to know the facts … I had to see the facts, unlike a lot of reporters” — a claim that doesn’t pass the sniff test coming from the president who has lied more often in his first year of office than any other president.
But most disheartening was the ignorance of American history explicit and implicit in his comments. He defended the “very fine people” there because of “the taking down of, to them, a very, very important statue and the renaming of a park from Robert E. Lee to another name.” He said these protests were understandable when “you are changing history, you are changing culture” by taking down Confederate monuments.
Never mind that these “very fine people” were standing next to white supremacists and Nazi’s chanting, “Jews will not replace us.” Never mind that the city had changed the name from Lee Park to Emancipation Park. Never mind that Trump failed to see the difference between Robert E. Lee, a traitor who fought a war to destroy the United States, and George Washington, who fought a war to create it.
After the death of a counter-protester and two police officers, the ACLU and federal courts faced criticism for having forced the city to allow the demonstration in Emancipation Park, rather than another park a mile away.
As a matter of black letter law, U.S. District Judge Glen E. Conrad was right to issue an injunction forcing the city to allow the demonstration in Emancipation Park. The judge noted that the city had tried to move the white supremacists’ rally away from Emancipation Park, but had not revoked the counter-demonstrators’ permits for the area near that park. This amounted to discrimination against the white supremacists based on the content of their speech, which violates the First Amendment. http://ftpcontent.worldnow.com/wvir/documents/kessler-federal.pdf
But Slate’s Dahlia Lithwick and Mark Joseph Stern suggest future First Amendment cases may have to factor in the growth of the Second Amendment and open carry movement. They wrote:
“The judge (Conrad) failed to answer the central question: When demonstrators plan to carry guns and cause fights, does the government have a compelling interest in regulating their expressive conduct more carefully than it’d be able to otherwise? This is not any one judge’s fault. It is a failure of our First Amendment jurisprudence to reckon with our Second Amendment reality.” http://www.slate.com/articles/news_and_politics/jurisprudence/2017/08/the_first_and_second_amendments_clashed_in_charlottesville_the_guns_won.html
Josh Blackman, a professor at South Texas College of Law Houston, made a similar point in the Lawfare blog. He noted that Justice Robert H. Jackson had once cautioned that if the court “does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact. https://www.lawfareblog.com/first-amendment-grounds-charlottesville
Another media-related First Amendment issue emerging from Charlottesville was the Twitter campaign – @YesYoureRacist – to shame white supremacists and neo-Nazis who attended the rally.
A first casualty was Cole White, a cook at a hot dog stand in Berkeley, Calif. who lost his job after he was outed as a demonstrator. White has no First Amendment protection because the amendment does not protect people from a private employer.
But Peter Cvjetanovic, a student and employee at the University of Nevada does have constitutional protection from the 10,000 petitioners who demanded him be expelled for his views.
The university said it rejected his views but added, “there is no constitutional or legal reason to expel him from our University or to terminate his employment.”
The university is right. As despicable as Cvjetanovic’s views are, they cannot be the basis of punishment by a state institution.
Those joining in the Twitter campaign might ask themselves how they would feel about a social media campaign to expel a member of Black Lives Matter or the anti-fascist Antifa group? They also might ask whether they want to be part of an online vigilante attack that sometimes mistakenly singles out lookalikes.
In an online piece of the New Yorker, the insightful journalist Robin Wright asks alarmingly, “Is America headed for a new kind of Civil War?” Wright quotes experts who warn America is not immune from the problems that befall other countries.
But that is a risk we should be able to avoid as long as the press and courts check the power of this wayward president, as long as Republicans with the spine of Sen. McCain criticize Trump’s excesses and as long as the First Amendment provides a constitutional way for protesters, right and left, to vent their anger.