In a year of shocking images, those from Charlottesville still chill me the most. Certainly those of “alt-right” marchers chanting “Jews will not replace us”, but even more so those of armed thugs attacking peaceful #BlackLivesMatter demonstrators in full view of quiescent police officers, https://www.nytimes.com/2017/08/25/us/charlottesville-protest-police.html?ref=oembed Eerily similar images from Germany in the 1930’s quickly come to mind.
While there is still a controversy over whether the police were ordered to “stand down” by their superiors, they clearly did not stand up to protect citizens exercising their constitutional rights from criminal violence. The right to speak out on controversial issues doesn’t mean much unless it is joined to a correlative right to police protection from violent reprisals by people who disagree with you.
We tend to think of “free speech” and “law and order” as contradictory concepts, but actually in practice they are a constitutional odd couple who need each other if either is to survive. The events at Charlottesville make it immediately clear how free speech is dependent on police protection. Alt-right participants threw rocks, water, and even bottles of urine at the counter- demonstrators as the police stood by. Experiences like that can only dampen the enthusiasm of future would-be demonstrators to speak out.
The dependence of the police on the vitality of free speech guaranties may be less obvious, but is no less present. The First Amendment needs the police for protection, but the police have an equally necessary need for the democratic legitimacy that can only be provided by a system that allows the citizens to voice their views on public issues– including police misconduct. Otherwise “law and order” is reduced to only “order” enforced by fear.
The growth of #BlackLivesMatter signals that large numbers of minority citizens have lost faith in the police, a fact that can only diminish police effectiveness. Events like those we saw take place in Charlottesville will now undermine the confidence of millions of other Americans in the fairness of the system. Where does that leave our much heralded faith in the “rule of law”?
Of course, President Trump was not directly involved in the decisions made by the police in Charlottesville last August, but I believe that his election and actions since then have created a social space where such practices have become tolerated if not condoned. When the president uses the presence of demonstrators at a rally as an invitation to whip up the crowd to “get’em out of here,” his words become the constitution in action. Tolerance of opposing opinions is no longer celebrated; it’s now seen as a sign of weakness.
So too the fact that President Trump’s recent imbroglio with NBC news will never reach a court does not deprive it of constitutional impact. NBC had reported the president wanted to multiply our nuclear stockpile tenfold; he denies it. This is a question of fact. Of course, Trump might have the facts right and the network might have them wrong, but I don’t think many would bet on that proposition after listening to the president the last nine months. I don’t even think he expects most observers to believe him; he knows that “alternative facts” voiced by the President will have the power to comfort his supporters and raise doubts among the uninterested and/or undecided.
But the idea that that each side can have its own facts is antithetical to the values behind our First Amendment which assumes that reasoned debate will allow the audience to distinguish between “truth” and “falsity”‘. If uncomfortable facts can be dismissed as “fake news”, reasoned debate ends, and with it democratic public discourse.
Some critics, like the author of this Washington Post article, believe that Trump may be too much a clown to be dangerous. https://www.washingtonpost.com/blogs/erik-wemple/wp/2017/10/11/president-trump-may-be-too-incompetent-to-destroy-the-first-amendment/?utm_term=.1e9916ffa709 Unfortunately, that’s probably not true. He may indeed be a braggart and a charlatan, and perhaps also mentally unbalanced, but Donald Trump is also a genius of sorts. Not like Einstein, more like the creator of a very successful reality television show who knows how the viewers’ mind works and how he can manipulate it to his advantage. And in our entertainment-centered culture, that means real power, power here magnified exponentially by the fact that the speaker is the elected leader of the most powerful nation in the world.
And let’s not forget that even an unsuccessful Trump might bring down the whole edifice of constitutional democracy with him. Remember many thought Hitler a clown and he did ultimately fail, but not before he destroyed German democracy and caused the death of millions of innocent people.
