Election 2016

Which 3 Freedoms Will the Next President Restrict or Ban?

The list stops at three for the sake of brevity, but you can assume that Clinton and Trump both have more than enough doom to spare for other liberties.

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Gage Skidmore (L)/State Dept (R)

Going into today's presidential vote, horrifying Democratic candidate Hillary Clinton remains a hair ahead of repulsive Republican contender Donald Trump, though the momentum appears to be on his side in the polls. Americans seem understandably torn after repeated media assurances that this is less of a normal democratic process than an opportunity to choose the form of the destructor—and no fair cheating by "wasting" your vote on Gary Johnson or any other non-evil option. Pick A or B, corrupt or crazy, if you want to be one of the cool kids.

There's little time left to prepare for the aftermath of this election—hopefully, you've already hedged your investments and put aside materials for converting the family SUV to a technical (keep in mind that gun oil plays havoc with upholstery). So let's take a look at what we can expect depending on which vindictive control freak representing the major political parties ultimately wins the White House. What are a few of the important freedoms Clinton or Trump might move to restrict or outright ban in the aftermath of a victory?

If Clinton wins…

Free Speech. There's no doubt that terrorism is a major concern for many people around the world, and Hillary Clinton thinks she's found an important weapon in fighting radicalization: making people shut up.

"You're going to hear all of the usual complaints, you know, freedom of speech, et cetera," she snarked during a speech at the Brookings Institution. "But if we truly are in a war against terrorism and we are truly looking for ways to shut off their funding, shut off the flow of foreign fighters, then we've got to shut off their means of communicating."

The Democratic candidate wants to conscript social media companies into her crusade against speech she dislikes, too.

"We're going to need help from Facebook and from YouTube and from Twitter," she told ABC's This Week. "They cannot permit the recruitment and the actual direction of attacks or the celebration of violence by the sophisticated Internet user. They're going to have to help us take down these announcements and these appeals."

Not that Clinton's hostility to speech begins and ends at the really radical stuff—she doesn't like any sort of criticism targeted at professional politicians and their pet causes. Earlier this year, Reason's Damon Root referred to "Hillary Clinton's well-known view that federal authorities should be able to prevent her political opponents from distributing a documentary film that's critical of her in the days before a federal election." Lots of political figures dislike the Supreme Court's Citizens United decision affirming Americans' right to create incorporated organizations so they can pool resources to speak out about candidates and issues. But only one person—Hillary Clinton herself—was the subject of the documentary at the heart of that case.

She's still upset.

"In my first 30 days as president," she announced in July, "I will propose a constitutional amendment to overturn Citizens United and give the American people, all of us, the chance to reclaim our democracy."

That reclamation would come, Clinton promises, by altering the Constitution to limit the protections of the First Amendment, leaving speech less free for everybody—all because some people criticized her in a film in 2008.

Guns. We already knew from Hillary Clinton's frequent pronouncements that she's not keen on leaving the means of self-defense in private hands. What we didn't realize was that the former Secretary of State is also hostile to even the defense of public officials like herself.

"Clinton's treatment of DS agents on her protective detail was so contemptuous that many of them sought reassignment or employment elsewhere," a former Bureau of Diplomatic Security agent told the FBI. "[B]y the end of Clinton's tenure, it was staffed largely with new agents because it was difficult to find senior agents willing to work for her."

Now, that's dedication to walking through life unsheltered from risk. And to make sure the rest of us at least as much risk (she still has a disaffected agent or two watching her back, after all), "Hillary will take administrative action" on restrictions, as her campaign website boasted before that autocratic turn of phrase was carefully scrubbed. To clarify, the Washington Post points out that President Clinton would be "relying on the executive power of the presidency to further gun restrictions that would have little chance of becoming law."

Specifically, Hillary Clinton wants to require background checks even for kitchen counter sales of guns between friends and neighbors. That's a requirement that's guaranteed to be unenforceable—"people are just ignoring this law," Colorado Sen. Greg Brophy (R-Wray) said of a similar measure adopted in his state. But it would set the grounds for increased confrontations between police and the public.

Hillary Clinton also claims that the gun industry is "wholly protected from any kind of liability"—a claim even Politifact rates as "False." Her intended policy would strip gun makers of protections against politically motivated lawsuits that had been devised in the '90s as a means of limiting the availability of guns to American civilians by driving manufacturers out of business.

Clinton has also spoken out against "assault weapons" without defining the term beyond falsely implying that Americans have easy access to machine guns.

"Australia is a good example" Clinton told an audience last year. "The Australian government, as part of trying to clamp down on the availability of automatic weapons, offered a good price for buying hundreds of thousands of guns. Then, they basically clamped down, going forward."

Australians widely defied that confiscation, it should be noted, and cooked up a massive black market in guns. Their government has scheduled yet another amnesty to get citizens to surrender weapons that officially don't exist after that first amnesty.

Privacy and encryption. For somebody who has an awful lot to hide from the public—former Obama staffer and fellow Democrat David Axelrod charges her with "an unhealthy penchant for privacy"–Hillary Clinton really doesn't like it when the public returns the favor and keeps secrets from her. When federal security officials issued one of their periodic public complaints that encrypted communications make it hard for them to snoop on people and catch bad guys, she took their side.

"We need Silicon Valley not to view government as its adversary," Clinton told the Council on Foreign Relations in New York. "We need our best minds in the private sector to work with our best minds in the public sector to develop solutions that will both keep us safe and protect our privacy."

When Apple's Tim Cook slapped back, warning that weakening privacy protections to help the government would be a gift to hackers and foreign spies, Clinton doubled down.

"It doesn't do anybody any good if terrorists can move toward encrypted communication that no law enforcement agency can break into before or after," Clinton told a debate audience. "I just think there's got to be a way, and I would hope that our tech companies would work with government to figure that out." Specifically, she called for a "Manhattan-like project" to give government access to people's communications.

Clinton, Techdirt noted, "used the opportunity to align herself with the idiotic side of the encryption debate."

Encryption has become such a hot button issue in recent years largely because of Edward Snowden's revelations about NSA snooping on the American public and the world at large. Hillary Clinton is more than a little pissed that the whistleblower gave us all a heads-up about officially sanctioned invasions of our privacy. Asked if Snowden should be able to return to the United States from overseas exile without facing legal penalties, she answered, "I don't think he should be brought home without facing the music."

Of course not. After all, she's a huge booster of the surveillance state and favors an "intelligence surge" to monitor online activities.

If Trump wins…

Free speech. No more than his Democratic rival is Donald Trump a fan of letting people speak their minds unimpeded. And like her, he uses fear of terrorism as a starting point.

"We're losing a lot of people because of the internet," Trump told attendees at a campaign rally. "We have to see Bill Gates and a lot of different people that really understand what's happening. We have to talk to them about, maybe in certain areas, closing that internet up in some ways. Somebody will say, 'Oh freedom of speech, freedom of speech.' These are foolish people."

Sometimes you have to wonder what it is that sets Trump and Clinton against each other—they seem to agree on so much.

But not on everything.

While Trump dislikes criticism by the unwashed masses as much as his Democratic rival, he's not patient enough to wait for a constitutional amendment to trim free speech protections. The thin-skinned demagogue's preferred tactic is to make it easier to sue publications that criticize people like him—that is, wealthy, powerful people seeking public office.

"We're going to open up libel laws, and we're going to have people sue you like you've never got sued before," he announced earlier this year.

But the United States already has libel laws. If somebody publishes information about public figures—such as individuals jetting around the country seeking to wield the powers of the presidency—they must act out of actual malice or reckless disregard for the truth to be held liable.

That's not good enough for Trump who, to the extent that he actually understand the issue, wants to the U.S. to adopt Britain's laws.

"[I]n England you have a good chance of winning," he told a Miami CBS station. "And deals are made and apologies are made. Over here they don't have to apologize. They can say anything they want about you or me and there doesn't have to be any apology. England has a system where if they are wrong things happen."

"In American courts, the burden of proof rests with the person who brings a claim of libel," NPR pointed out in a 2015 article about the legal differences between the U.S. and Britain. "In British courts, the author or journalist has the burden of proof, and typically loses."

Lawmakers in the U.S. have actually acted to protect Americans against British libel judgments because of the weak protections for free speech in that country.

So Trump wants to adopt for the U.S. British laws that have already been adjudged so toxic to free speech beyond the U.K.'s borders that they've provoked legislative action on this side of the Atlantic.

Muslims. It's not often that you get a presidential candidate waging war against an entire religion, but Donald Trump has boldly gone where other political hopefuls have had too much decency to go before.

"Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on," his campaign announced last year.

Officials from across the political spectrumand the planet–promptly denounced Trump's exclusionary position. Dick Cheney, the last vice president from Trump's own political party, commented that "this whole notion that somehow we need to say no more Muslims and just ban a whole religion goes against everything we stand for and believe in."

In July, when accepting the Republican nomination, Trump seemed to modify that proposed ban a bit, saying the United States "must immediately suspend immigration from any nation that has been compromised by terrorism until such time it's proven that vetting mechanisms have been put in place."

Was he stepping down a bit on his anti-Muslim hostility?

"I don't think so. I actually don't think it's a rollback. In fact, you could say it's an expansion," Trump answered NBC's Chuck Todd. "I'm looking now at territory. People were so upset when I used the word 'Muslim': 'Oh, you can't use the word "Muslim."' Remember this. And I'm okay with that, because I'm talking territory instead of Muslim."

So…we're still talking about banning Muslims, but without using the word "Muslim," because that might offend people.

Got it.

Trump's call for excluding members of an entire religion hasn't appeared much in recent political discussion, though that may be a sign of how much damage it's already done.

"[T]he Trump campaign has managed to turn the once-unspeakable into the so-mundane-it-doesn't-need-to-be-spoken-about, altering the American political landscape even before voters go to the polls," the Times of Israel warned in an astonished examination of the issue. "[W]ith the conversation having shifted in a roller coaster of an election year, it's no longer unfathomable that such a controversial proposal, one that could change America for generations if enacted, could go insufficiently interrogated from now until November 8."

Privacy/encryption.

There's little question of where Donald Trump stands on the treatment of Edward Snowden after the whistleblower warned us all about the U.S. government's snoopy ways.

"I think Snowden is a terrible threat," Trump announced before officially launching his presidential campaign. "I think he's a terrible traitor, and you know what we used to do in the good old days when we were a strong country, you know what we used to do to traitors, right?"

It's no surprise that the Republican presidential candidate favors surveillance of mosques, in general, given his overall prohibitive attitude toward Muslims. And given his old-school ideas on the treatment of "traitors" like Edward Snowden, it's equally unsurprising that he's all over electronic spying in general.

"Well, I tend to err on the side of security, I must tell you," he told radio host Hugh Hewitt when asked about the NSA and the Patriot Act. He even seemed to take being the subject of surveillance with a shrug.

"I assume when I pick up my telephone, people are listening to my conversations anyway, you want to know the truth. It's pretty sad commentary. But I err on the side of security."

Well, Trump has never displayed any tendencies toward shyness, so maybe he really doesn't give a damn what elements of his life get shared with the public—and can't imagine why anybody else would.

And don't think he'll overlook personal efforts to thwart snooping. He went ballistic when Apple battled FBI efforts to force the company to crack iPhone encryption.

"Who do they think they are?" he fumed. "They have to open it up."

Then he called for a boycott of Apple until such time as the tech giant surrendered to the government.

Although the boycott call didn't seem to apply to Trump's own actions. He kept tweeting from his iPhone.

Choose the form of the destructor

Sometime in the next 24 hours—or maybe the days and weeks to come, if this election stays true to form—we'll find out which contender for the presidency has won the prize. But you can assume ahead of time that the rest of us lose.

Whichever of these true gems of democracy ultimately claim residence in the White House, we can be certain that Trump and Clinton alike plan to leave us all less free once given an opportunity to exercise the power they've so vigorously sought—and that's been freely surrendered by so many American voters.

NEXT: The 2016 votes of the Volokh bloggers (or at least half of us)

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  1. OH GOD I HOPE TRUMP WINS.

    Jill Stein approves this message.

    1. The odds of that are looking like sixty-eight to fifteen, in Clinton’s favor.

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    2. I don’t know if you are trying to troll everyone, or this is what you believe. At this point what difference does it make?

      1. He’s doing a parody of a Hillary supporter. I was wondering myself at one point but lately he’s been saying things that are over the top.

        1. He been doing a Hillary supporter, rather. Looks like he’s switched to Trump now.

      2. Weigel is always at his most unhinged during close elections like this. And he hasn’t slept for days.

  2. Speech. While I agree the both are bad, Hillary only needs to add a SCOTUS member to overturn CU. The media will oppose Trump and support Hillary even where their anti-speech ideas overlap.

    1. Hillary’s appointees will also overturn Heller, so the second amendment is toast, too.

      1. They are exactly the same!!!!!! **puts fingers in ears*** Repeats over and over: They are exactly the same, they are exactly the same.

        I will not vote for either candidate but will definitely look in the mirror and pat myself on the back for my principles! Principals over principles, baby!

    2. This. Hillary has a sizable chunk of the electorate clamoring for her to reinstate a law that made it illegal to make a movie criticizing her. I know nobody can agree on the definition of the word ‘fascism’, but that’s close enough for me.

      1. Per Mussolini, who coined the term:

        1. Nothing outside the State [me].
        2. Everything inside the State [me].
        3. Nothing against the State [me].

        As to which of the two major candidate best reflects this standard, that’s pretty much a break even.

      2. It’s basically corporatism with real teeth. So, yeah, Hillary.

  3. Trump won’t be able to realize his agenda, Clinton will have the obsequious press and fawning Congress kissing her withered ass. Trump bad, Clinton worse.

    Oh, and war with Russia.

    1. The media doesn’t vote in Congress. The Republicans who control Congress do.

      George W Bush had no trouble realizing his agenda.

      1. George W Bush had no trouble realizing his agenda.

        Social Security reform?

        1. Don’t forget about immigration reform. You know, that guest worker program that’s in place…

      2. Yeah, the establishment Republicans support Trump just as much as the Democrats do.

  4. I wish HL Mencken was still alive. He’d have some choice words about this election, I imagine. It really is quite a show.

  5. Republicans have their blind spots when it comes to liberty, but usually you can count on them to be generally in favor of the Constitution – their slide towards authoritarianism this year has been troubling.

    The rejection of liberty by Democrats is somewhat less surprising.

    1. “usually you can count on them to be generally in favor of the Constitution”

      Poe’s law?

    2. their slide towards authoritarianism this year has been troubling

      Uh, you’ve been asleep for about a century.

  6. Clinton will urge a tax on public flatulence for it offends someone’s delicate sensibilities.

    Clinton will call for the establishment of a Department of Transgender with Caitlyn Jenner as its head.

    Clinton will call for the establishment of safe spaces in every community.

    1. Only if it gets her votes or some specific support she needs at the time.

      You have to remember she is a lot like Stalin; he really didn’t give a fuck about communism, it was just his means to absolute power. and happened to be the cudgel du jour at the time.

      Her Hagness will say anything to anybody to get something at the time, but don’t count on her delivering if it costs her anything.

    2. Only if it gets her votes or some specific support she needs at the time.

      You have to remember she is a lot like Stalin; he really didn’t give a fuck about communism, it was just his means to absolute power. and happened to be the cudgel du jour at the time.

      Her Hagness will say anything to anybody to get something at the time, but don’t count on her delivering if it costs her anything.

        1. Da

  7. Stay Puft, Dora the Explorer 2020
    -Destruction you can believe in

  8. terrorism relies on being off the grid. That’s how they operate. You find them through close associates who turn them in. The Unabomber was recognized and informed on by his brother. Ted Bundy was informed on by his girlfriend (which law enforcement chose to ignore.)

  9. What are a few of the important freedoms Clinton or Trump might move to restrict or outright ban in the aftermath of a victory?

    As many as they and a compliant Congress can get away with?

    What do I win?

    I so hope I win something, since no matter which of these two disgusting humans gets elected today me and my countrypersons* are going to lose.

    *well, I’m certain that more people than my own countrypersons will suffer.

  10. 3 freedoms? You’re being extremely optimistic.

    1. This. A better question would be whether there are three freedoms that they’d leave alone.

      1. The right to feel comfortable in the bathroom.

        The right to the labor of others when it involves healthcare, education, housing and maybe more as they think them up.

        The right to feel safe from anything or any opinion that makes them feel bad.

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  12. Choose the form of the destructor

    I’m waffling between Almanian! and Giant Meteor. I won’t decide until I’m actually in the voting booth.

    1. GIANT ALMANIAN/CTHULHU 2106!

      1. I think Almanian will no longer be alive in 2106. Cthulhu, very possibly.

        1. I meant that would be the end of their reign?

          *swears at poor typing skills*

          1. Your keyboard is made of cheese, that’s the issue.

            1. It is?!!

              *gnaws on corner of keyboard*

              Hey?!!!

  13. Liberty plods under a constant and violent exorcism. Three losses on a crooked trajectory bending toward bondage blends into a graveyard horizon haunted by destroyed freedoms.

    The citizenry optimizes their own limitations by validating the governing who live to nail lids on human endeavor and expression.

    Goody! we get to pick the color of our goddamn chains today. Praise the motherfucking bureaucrats and all their tiny dicks and gangling labias.

    1. Now, more than ever, we need Agile Cyborg! Good to see you.

    2. Gangling labia? As in stringy? That’s just gross.

      1. How about labial ganglia?

    3. The Poet Laureate brings forth inspiring verse.

    4. Brings a tear to the eye

    5. The citizenry optimizes their own limitations by validating the governing who live to nail lids on human endeavor and expression.

      Reason’s poet, ladies and gentlemen! Just beautiful.

      Btw., I picked the color of my chains days ago. Who waits until election day anymore? The day’s revolting enough without adding line-standing to the insult.

  14. It’s so cute the way you think either of them will limit themselves to three.

  15. Goody! we get to pick the color of our goddamn chains today

    Amen Brother.

  16. Which? All of them. The world is just too dangerous for freedom.

  17. Only three?

  18. 1. Freedom of Thought
    2. Freedom of Word
    3. Freedom of Action

    That about cover it?

  19. I was asked this morning who I would rather have, out of the 2 that will win.
    Exactly what I said, as in the article.
    “Choose the form of the destructor.”

  20. “In my first 30 days as president,” she announced in July, “I will propose a constitutional amendment to overturn Citizens United and give the American people, all of us, the chance to reclaim our democracy.”

    Not the point being made here, but what on Earth does this have to do with her being in office? Why doesn’t she just “propose” it now? She has exactly as much to do with the process now as she will when she is president.

    1. I don’t know… something about a “mandate from the masses” or some such horseshit.

      Also, I suspect the majority of our fellow citizens are stupid enough to think that presidents can just amend the constitution any time they feel like it.

    2. That alone should disqualify Herself in the voting public’s eyes. To the extent that it doesn’t, I find myself quite despondent today.

    3. The President has the power to introduce legislation to Congress. Constitutional amendments included.

      1. No they don’t. They can suggest legislation. They can tell Congress what they want for a budget. Congress can choose or not to go along with the proposals (and rarely does in toto). Any legislation has to be submitted by a member(s) of the House or Senate.

        The only formal power the President has over any legislation is the veto which can, of course, be overridden, although it often doesn’t happen. They usually don’t even bother passing legislation that they expect the President to veto unless they’re pretty sure they have the votes to override or it’s being done as a political “message” so they can say we passed it but the President vetoed it. Not our fault. We tried.

    4. I hope Paul Ryan’s written response to her formal proposition to Congress to amend the constitution is: “well that’s like your opinion, man.”

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  22. 1. The freedom to fund political advertisements critical of Hillary Clinton.

    2. The freedom to speak, write or invest as if global warming might not be an existential threat.

    3. The freedom to arm yourself with weapons with any chance of practical use against a totalitarian state.

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