2016 Democratic Convention

The DNC and RNC vs. the First Amendment

When the Secret Service does the bidding of the two major political parties, free speech is abridged.

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Bernie delegates storm the media tent at DNC.
Reason/Anthony L. Fisher

This summer, we have all witnessed the heavy hand of government intervening in the freedom of speech, as the behavior of the Secret Service at both the Republican convention in Cleveland and the Democratic convention in Philadelphia was troubling and unconstitutional.

Though the First Amendment was originally written only to restrain Congress ("Congress shall make no law … abridging the freedom of speech"), it is now uniformly interpreted to restrict all government in America from abridging the freedom of speech.

The reason this freedom is referred to as "the" freedom of speech is to reflect the belief of the Framers that the right to speak freely is pre-political. Stated differently, the freedom of speech is an integral aspect of our humanity. The government does not grant the freedom of speech; it is prohibited from interfering with it.

This is known as a negative right, in the sense that government is negated from interfering with a personal natural right. A natural right is one whose exercise does not require a government permission slip. Speech is the classic example.

The reasons for this are numerous, and not the least of them are our natural inclinations to think as we wish and to say what we think in pursuit of happiness and personal fulfillment. The practical reasons for this right are the needs of an informed electorate to challenge the government and demand transparency and accountability.

How did this play out during the hot weeks in Cleveland and Philadelphia? Not well.

Though the political parties are private entities with their own rules, they have invited their members and supporters to these quadrennial conventions for the purpose of engaging in public political conversations.

Yet if the Republicans wanted only pro-Trump sentiments to be expressed in the hall in Cleveland and if the Democrats wanted only pro-Clinton sentiments to be expressed in the hall in Philadelphia, since neither entity is the government, both are free to abridge the freedom of speech without legal consequences.

The consequences of such abridgments would presumably be political; those whose speech is silenced and those who oppose silencing public political speech would cast their votes against the silencers.

Yet this summer, the heavy hand of government was involved in silencing speech.

Here is the back story.

Because both Donald Trump and Hillary Clinton are entitled to Secret Service protection by virtue of a federal statute, the Secret Service either offered or demanded that it be the lead law enforcement agency providing general security—not just to Trump and Clinton but for everyone — at the conventions. In both cities, local officials went along with this.

The freedom of speech issues arose when the leadership of both conventions got so cozy with the Secret Service that they began using the federal agency as if it were private security, and they did so in such a manner as to preclude judicial intervention in aid of the freedom of speech.

Thus, when the Republican leadership wanted to quell a "Never Trump" boomlet on the convention floor, it had the Secret Service remove all reporters and producers — including some of my Fox News colleagues — from the floor. And when the Democratic leadership wanted to silence a pro-Bernie Sanders onslaught on the convention floor, it had the Secret Service confiscate Sanders placards from delegates on the floor.

The government removal of the press by command of the Republicans and the government removal of Sanders placards by command of the Democrats constitute not only an unheard-of commandeering of the government's coercive powers for a private purpose but also the government's abridging the freedom of speech. And all this was done quickly and without notice — and without an opportunity for redress to the courts.

The first duty of government is to preserve life, liberty, and property. It is a strange and dangerous government that stifles freedom for some fleeting private purpose. It is equally strange that a freedom-loving people would tolerate this.

The whole purpose of the First Amendment and its underlying values is to encourage open, wide, robust, unbridled debate about the policies and the personnel of the government. The prevailing judicial interpretations of these values quite properly keep the government out of the business of assessing the value and propriety of public political speech.       

The First Amendment demands that the test for acceptance or rejection of speech in the marketplace of ideas be made by individuals — uninfluenced, undeterred, and unmolested by the government.        

When the government stifles free choice in an area such as speech, it is no longer the people's servant. It has become their master. Do you know anyone outside the government who wants that?

COPYRIGHT 2016 ANDREW P. NAPOLITANO | DISTRIBUTED BY CREATORS.COM

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  1. The whole purpose of the First Amendment and its underlying values is to encourage open, wide, robust, unbridled debate

    Completely wrong. The whole purpose of 1A is to remove excuses for violence. This is obvious by looking at what’s going on in Europe right now – Laicite radicalizing young jihadis and German police conducting door-to-door facebook raids. You seriously think these people have anything of value to add to the discussion? The founding fathers understood that ‘religious’ strictures were meant for nothing more than to justify mischief and wreak havoc. The parties are well within their rights to kick people out as they please, though you might have a technical point about using the Secret Service. The rest is (pardon my French) argle bargle. You are spoiling for war and you will fail.

    1. Not only is it completely wrong, it is naive. “Free speech,” in our great nation, means the right to politely express an opinion in an appropriate manner and in appropriate circumstances, as defined by the proper authorities. This has been recognized by New York’s highest court (among others), by the “free speech community” itself, and even by the “American Civil Liberties Union” or ACLU which has wisely distanced itself from that so-called community. Surely Judge Napolitano would not wish to defend the outrageous “First Amendment dissent” authored by a single, isolated, liberal judge in America’s leading criminal “satire” case? See the documentation at:

      http://raphaelgolbtrial.wordpress.com/

  2. The Federal Restricted Buildings and Grounds Improvement Act was enhanced by Obama in 2012. This creates a zone anywhere a secret service protected person is or will be. This is why the SS was able to do what it did in both conventions. It also allows them to criminalize protest as a federal offense. I’m sure that would be considered a violation of our constitution wouldn’t it?

  3. If you can’t trust the Secret Service who can you trust?

    1. The 1980’s Ghostbusters?

    2. Sheriff Bart?

    3. The Gorton’s fisherman?

    4. An Escort Service?

    5. The Watchmen?

    6. Subway Jared?

    7. The other SS?

    8. you, who’s got the lust?

    9. The snake you took in and nursed back to health?

  4. But Trump will keep the brown people out!

  5. Wikileaks pushes leaked DNC voicemails:

    The surfacing of the files just hours before President Barack Obama was set to speak at the Democratic National Convention is sure to raise more questions about leakers’ intent to disrupt Hillary Clinton’s campaign during her party’s nominating convention.

    Wikileaks is forcing us to cover this! Wah! It’s not fair that they are distracting from her coronation!

    1. I thought of the same thing, you know what else is driving the dens nuts is the fact that her being the first female nominee for president is hardly getting attention – it was briefly reported but Trump rather cleverly shifted the focus back on her private server issue by asking the Russians to hack her – her campaign took the bait, idiots they are. They failed to realize that Trump succeeds where other candidates would fail.

      Grab the popcorn because the debates will be fun.

      1. I bet Trump makes Hillary cry.

        1. can she cry? will we see the fake tears during the campaign caused by that big meany Trump?

          1. I’m hoping for a bi-lateral coughing fit by both, followed by a stroke for Shrillary and tRump. Followed by pearl clutching from the media slimeballs for Shrillary’s unfulfilled promise.

    2. Even worse, the leakers forced the people in the DNC to say what they said.

    3. They’re taking the slow roll approach of Snowden.

      I would imagine they’ll drop another bomb this afternoon to take the wind out of Clinton’s sails.

      1. They aren’t even doing that. Those voicemails were in the stuff released last week. People have just discovered it by going through the items.

        It’s like the press complaining that the earth just revealed this new gold mine at a particular time because it was finally just discovered.

  6. The whole purpose of the First Amendment and its underlying values is to encourage open, wide, robust, unbridled debate about the policies and the personnel of the government.

    That treads a little close to Bork’s position that freedom of speech only applies to political speech, that a “Fuck Hillary Clinton” T-shirt might pass muster but not a “Fuck The Dallas Cowboys” one. This despite the implicit message being expressed by wearing the “Fuck The Dallas Cowboys” T-shirt that one should have the right to wear a “Fuck The Dallas Cowboys” T-shirt. According to Bork, the government is free to proscribe any expression of opinion not directly related to politics. And all the rights you have are only those expressly granted by the first eight amendments to the Constitution. Which is why I really need a “Fuck Robert Bork’s Evil Corpse” T-shirt to go along with my “Fuck The Dallas Cowboys” T-shirt. (Did I mention I don’t like the Dallas Cowboys? Or Robert Bork?)

    1. how about “Fuck The Dallas Cowboy Cheerleaders”?

      1. I can, ahem, get behind that!

    2. The whole purpose of the First Amendment and its underlying values is to encourage open, wide, robust, unbridled debate about the policies and the personnel of the government.

      100% dead wrong. That is a purpose, but very for from the entire purpose, of free speech.

  7. When the government stifles free choice in an area such as speech, it is no longer the people’s servant. It has become their master. Do you know anyone outside the government who wants that?

    Hitl–oh, never mind, *outside* the government.

    1. Every proggie and socon voter ever?

  8. FFS, by this reasoning if I start yelling during an Obama press conference and the secret service removes me then it’s a violation of the first amendment. There’s a litany of issues to be concerned about regarding the first, and they manage to find a non-existent one to write about.

    1. Are you yelling to get a counter-argument heard after they took the microphone away, or are you yelling to drown out the droner-in-chief?

      One is an exercise of rights, the other is trying to deny the same to someone else.

    2. But the reasoning isn’t that you’re yelling during a presser, you’re just standing there quietly wearing your “Fuck Block Insane Yomamma” T-shirt.

      1. Lese majeste.

  9. it had the Secret Service confiscate Sanders placards from delegates

    Serious question: When an SS agent does stuff like this, is xi required to identify xirself?
    I mean, otherwise how does the delegate being, um, corrected know xi’s not just, say, an SEIU goon?

    1. there’s a difference?

  10. Yea, but everyone knows that hate-speech ain’t free-speech and should therefor be illegal because reasons. //sarc

    1. cause hatey, hate, hate?

  11. as you said this is a private enterprise so they can ask security to remove whoever they want i see nothing wrong here. Now when they start silencing news media and protesters outside of the convention area then there is a problem. Remember there is no right to be heard but people do have the right to hear so removing those who would interrupt is a protection of a right as well.

  12. The entire premise here is silly. The conventions are private events and as such they can really do almost anything they want relative to permitted speech. Try unfurling a political flag at your next local NFL game and see what happens.

    There are plenty of “free speech” issues around these days, but this RNC/DNC stuff isn’t even a blip.

    And this also smacks of “the press is special” crap that we hear from journalists all the time. Fox News reporters on the floor of the convention have no rights different than that of a private citizen. The access they receive is entirely given to them by the RNC. There is no right to be there.

    1. MikeP2|7.28.16 @ 12:42PM|#
      “The entire premise here is silly. The conventions are private events and as such they can really do almost anything they want relative to permitted speech. Try unfurling a political flag at your next local NFL game and see what happens.”

      Fail.
      Read A-1 again. It prohibits the *government* (S/S) from interfering in speech, regardless of the context.
      You may get tossed from a football stadium by security, but the *government* is not allowed to limit speecch.

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