Remind me, is free speech good or bad?

Last week the media was hyperventilating over the perceived injustice of President-elect Trump suggesting that people who burn the flag should be punished.   That sort of censorship, many believe, would be an affront to the First Amendment, no matter whom was offended by the behavior.  This week, in a totally non-ironic turn of events, some journalists are suggesting that the Obama administration consider censoring speech. I’m not kidding.[1]

New York Times White House correspondent Gardiner Harris asked Obama’s press secretary “I guess what I’m asking – I’ve never heard you talk about what the administration is doing, even not just on a law enforcement bases but a policy basis…I mean, the President has recently been discussing the problem of fake news on Facebook.  Why hasn’t there been a concern – a growing concern on the part of the administration about vitriol directed at a variety of people…within the United States?”[2]

Translation: what is the Obama administration going to do to silence speech we don’t agree with?

For his part, Press Secretary Earnest responded tactfully and clearly, “Obviously, there are some important First Amendment issues that come into play when we’re having this discussion”. Pressed further, Earnest continued that “…given the First Amendment questions that are raised, the role for the government to play in all of this is going to be necessarily limited by that.”[3]

He’s right. The First Amendment prohibits the government from punishing most forms of expression such as burning a flag, or writing disagreeable things. As Jed Rubenfeld, Professor at Yale Law School thoughtfully points out in his interesting read on First Amendment jurisprudence “there [should be] certain First Amendment absolutes, which stand up regardless of any balancing of interests.”[4] Maybe Time Warner CEO Jeff Bewkes is also right. Maybe Democrats were a bigger threat to the First Amendment than Trump.

—  Derek A. Jordan, Esq., Barnes Law

Derek A. Jordan is an associate attorney with Barnes Law, licensed to practice law and land surveying in Tennessee.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See: http://dailycaller.com/2016/12/06/earnest-forced-to-cite-first-amendment-four-times-as-press-corps-insists-white-house-censor-news/

[2] See: https://www.whitehouse.gov/the-press-office/2016/12/05/press-briefing-press-secretary-josh-earnest-12516

[3] Ibid.

[4] An interesting read on the inconsistencies within First Amendment jurisprudence. See: http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2559&context=fss_papers