Future of Free Speech at Risk in Trump Impeachment Trial | Opinion

For some time now, concerns have been growing nationwide about restrictions on free speech and the censorship of disfavored views. These concerns are not without merit—what began as a slow purge of fringe voices by certain online platforms has intensified in recent months into a full-blown attack on certain ideas. Prominent voices in the media, big tech and even the halls of Congress call for proponents of views they deem "misinformation" to be completely de-platformed.

In recent weeks, would-be deplatformers have introduced a new term of art to justify an even greater crackdown on unwelcome political speech: "incitement to violence."

This phrase refers to the allegation currently facing Donald Trump in his post-presidency impeachment trial, set to begin this week. Apart from a rather inane reference to a cliched figure of speech the president used (Trump said people should "fight like hell" for their country), the article of impeachment offers no evidence that he intended or even approved of what took place at the Capitol. Instead, it argues, Trump's claim that the election was rigged in itself constitutes incitement. His political argument, they claim, was so evil, so pernicious, that just hearing the points laid out was enough to drive some in the crowd to violence.

The ruling class appears to share this line of thinking. Big tech used the same justification almost immediately after the riot to remove the sitting president from their platforms, and to shut down a competing social media app. The next day, Simon & Schuster announced it would be scrapping its deal to publish a book by Sen. Josh Hawley (R-Mo.), implying that he was complicit in the violence for simply expressing concerns about the 2020 election on the Senate floor. Days later, Democratic representative Alexandria Ocasio-Cortez (D-N.Y.) accused Sen. Ted Cruz (R-Tex.) on Twitter of attempting to murder her because he had conveyed those same concerns.

Unsurprisingly, allegations of "incitement to violence" are also being applied to conservative arguments on issues totally unrelated to election integrity. Biblical scholar Robert A.J. Gagnon recently wrote a Facebook post protesting the suspension of his friend from the platform for arguing against the Biden administration's extreme policies on transgenderism. Gagnon's argument was hardly inflammatory, especially by social media standards.

Chuck Schumer
Senate Majority Leader Charles Schumer (D-NY) speaks to the press as preparations for former US President Donald Trump's trial are made on Capitol Hill February 9, 2021, in Washington, DC. - Donald Trump's historic second impeachment trial, which opens Tuesday, will follow rules codified in 1868, but the proceedings will run on a tight schedule agreed by Republicans and Democrats. Nicholas Kamm / AFP/Getty

But almost immediately, Facebook censored and suspended Professor Gagnon as well, accusing him of violating "Community Standards on violence and incitement." "We have these standards," a pop-up explained, "to prevent and disrupt offline harm."

It is impossible to see how Prof. Gagnon's post is supposed to have "incited" violence. But it is easy to see the political utility of claiming that he did. Arguing that your opponent ought to be censored simply because he is "misinformed" is a difficult task. But if he is causing "violence," it is easy to justify almost any measure in response.

Already the Biden administration is vowing to crack down on a supposedly vast online network of domestic "extremists." If the application of the "incitement" standard is any indication, the administration's definition of "extremism" is likely to be broad enough to encompass the likes of Prof. Gagnon, or of Sens. Hawley and Cruz. At The American Conservative, Peter Van Buren has already outlined how easily the new standard will be used to punish any perceived threat to the ruling class's social vision.

As Van Buren notes, the current law on incitement in the case of Trump is fairly cut and dry. Alleging incitement against opposing political leaders, as a legal tactic, is far from new. The state of Mississippi did exactly that to a group of NAACP leaders in the late 1960s (the leaders had urged a boycott of white-owned businesses, and some boycotters responded with violence). The Supreme Court unanimously ruled in favor of the NAACP on First Amendment grounds.

But the purpose of the impeachment is not to make a legal argument so much as it is to establish a moral and rhetorical justification for the censorship and punishment of political speech. As the impeachers are quick to point out, they do not feel constrained by the First Amendment legally, and certainly don't feel constrained by it morally. Instead they seek to elevate a speech-as-violence framework that as yet has only caught on among left-wing campus activists.

If their standard is widely adopted, it will not stop with Trump, nor will it be limited to declarations about this past election. And if history is any guide, it will eventually be used to justify far worse things than impeachment.

Terry Schilling is the executive director of American Principles Project. Follow him on Twitter@Schilling1776.

The views expressed in this article are the writer's own.