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Joe Biden and the Death of Free Speech

The president's first day was marked by a harsh crackdown on the right to protest. So much for a return to normalcy.

U.S. Capitol fenced off in preparation for Joe Biden's inauguration. (By Evgenia Parajanian/Shutterstock)

The media loved Joe Biden’s inauguration: his platitude-laden speech and his calls for “unity” struck the perfect note for a Washington establishment that wants no more guff from the “deplorables.” But few commentators stooped to point out the radical changes of Biden’s big day, such as its being the first inaugural since 1865 with the military openly occupying the nation’s capital. 

In his inaugural address, Biden castigated “a riotous mob [that] thought they could use violence to silence the will of the people.” But politicians invoked that same mob to justify silencing protesters for miles around the inauguration. Biden also declared, “That’s America. The right to dissent peaceably, within the guardrails of our republic. It’s perhaps this nation’s greatest strength.” Yet during Biden’s inauguration, new “guardrails” drove free speech into the dirt.

The Washington Post, a bellwether of the media’s adulation of the new president, had no problem with silencing dissent. Its report on the issue was headlined, “In closing Mall, officials try to strike a balance between the First Amendment and securing Biden’s inauguration.” The “balance” was achieved by suspending the First Amendment on the most important protest day on the American calendar.

The Post noted that only one protest would occur during the Biden inauguration “with about five demonstrators manning a video screen, tucked away near Union Station, along a secure perimeter, surrounded by largely vacant D.C. streets.” Amazingly, the Post portrayed this as proof that the First Amendment had survived: “D.C. and federal officials reached a compromise. They said the plan allows the city’s tradition as the nation’s preeminent stage for protest and free-speech gatherings to continue.”

The federal government dictated so many restrictions on protests that almost all the groups that planned to demonstrate threw in the towel. But that didn’t deter federal officials from taking a victory lap. National Park Service spokesman Mike Litterst declared, “When the government is under assault, that’s especially a time you do not want to appear to be denying civil liberties or denying people their rights under the First Amendment.”

Federal repression got a seal of approval from an organization long renowned for its uncompromising defense of free speech. Scott Michelman, legal director for the American Civil Liberties Union’s Washington D.C. office, told the Post:

It’s no question that closing off public spaces, even for a limited time, affects people’s ability to exercise their free-speech rights, but at the same time, the government is permitted to carry out temporary targeted closures of common areas when they have a good reason and aren’t trying to favor one viewpoint over another. If they close the Mall for the inauguration based on a threat, the First Amendment doesn’t prohibit that. If they close the Mall for all of 2021 because there was a threat in January, that is very likely to be overly restrictive.

Very likely? At least the ACLU didn’t endorse shutting down the Mall for the entirety of Biden’s presidency. But neither the federal government nor the District of Columbia government provided clear evidence of an imminent threat that would justify shutting down the Mall and effectively banning protest throughout the vast “Green Zone” that the feds had declared for the Biden inauguration. 

The ACLU sounded happy to see protests suppressed so long as pro-Trump activists were kept off of the streets and the Mall. Michelman explained: “It can be just as chilling for many would-be demonstrators to know that they’re going to be met with violent counterprotesters as it would be if they were to be met with state violence. Nobody wins when insurrectionists storm the Capitol and wanton violence plays out on the streets of the nation’s capital. That’s not free speech, and that’s not conducive to anyone’s free speech.” 

Is Michelman’s horror at protests that erupt into violence selective? A Reuters report notes that Michelman “is representing Black Lives Matter and several individual protesters from a June 1 protest outside of the White House that was dispersed with aggressive police tactics.” Protesters, as law professor Jonathan Turley noted, injured 75 police officers, hit by “frozen bottles, bricks and other missiles. For two days, the violence continued with the burning of a historic structure, extensive property damage and the attempted burning down of the historic St. John’s Church.”

Will Biden revive the travesties of the George W. Bush era? Bush pioneered the use of “free speech zones” to treat protesters as lepers that needed to be kept far from the public and the media, as I documented in a piece for The American Conservative in December 2003. The Bush administration was notorious for seeking to suppress all criticism when the president traveled around the nation. When Bush visited St. Louis shortly before he launched his invasion of Iraq, 150 people carrying protest signs were shunted far away from the main action and effectively quarantined. A local ACLU official complained, “No one could see them from the street. In addition, the media were not allowed to talk to them. The police would not allow any media inside the protest area and wouldn’t allow any of the protesters out of the protest zone to talk to the media.”   

When Bush visited Columbia, South Carolina, a lone protester with a “No War for Oil” sign was arrested for “entering a restricted area around the President of the United States.” The protester later complained: “The problem was, the restricted area kept moving. It was wherever I happened to be standing.” When the case went to trial, the Justice Department asserted that no court should have the power to “second-guess the Secret Service and law enforcement on security decisions”—thus potentially entitling the feds to shut down all future protests in the president’s vicinity. Bush administration abuses spurred a joint letter from the most libertarian and one of the most liberal members of Congress—Congressman Ron Paul and Congressman Barney Frank, respectively—declaring that the entire nation “is a ‘free speech zone.’ …We ask that you make it clear that we have no interest as a government in ‘zoning’ constitutional freedoms, and that being politically annoying to the president of the United States is not a criminal offense.”

Another element of Biden’s inaugural address that Washingtonians cherished was his repeated denunciations of “extremism.” This could foreshadow a coming crackdowns on dissent—and the Washington Post is again taking the lead. On January 18, Post columnist Max Boot called for reviving Federal Communications Commission censorship of political speech “or else the terrorism we saw on Jan. 6 may be only the beginning…of the plot against America.” Boot continued, “There is a whole infrastructure of incitement that will remain intact even after Trump leaves office. Just as we do with foreign terrorist groups, so with domestic terrorists: We need to shut down the influencers who radicalize people and set them on the path toward violence and sedition.” Boot praised Britain for having “a government regulator that metes out hefty fines to broadcasters that violate minimal standards of impartiality and accuracy.” Boot is a “global affairs analyst” for CNN, where one of the top hosts recently denounced all Trump voters as guilty of siding with Nazis and the Klan. 

In his inaugural address, Biden proclaimed, “There is truth and there are lies, lies told for power and for profit.” Biden asserted that “leaders who have pledged to honor our Constitution” have a duty “to defend the truth and defeat the lies.” “Defeating lies” was practically the motto for the first brazen repression of civil liberties in American history. 

Eight days after Trump supporters clashed with police at the Capitol, the Post ran a piece praising the Sedition Act of 1798—which criminalized “false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress…or the President…with intent to defame the said government…or to bring them…into contempt or disrepute.” University of Notre Dame professor Katlyn Marie Carter praised that law for forcing “a conversation about the dangers of misinformation, one we need to have again today.” 

But forcing a conversation by putting critics in prison was exactly the type of discussion that the First Amendment prohibited (“Congress shall make no law…”). Carter notes that the law was enacted as “a response to a perceived crisis of misinformation and its potential to undermine trust in elected officials.” If Congress and President John Adams were happy to trample the Bill of Rights, then they deserved all the distrust they garnered. While not calling for reviving the 1798 law, the Post piece did fret that “allowing misinformation to proliferate in the name of absolute freedom of speech is also dangerous.” 

Capitol Hill progressives sound like 1798 revivalists. Congresswoman Alexandria Ocasio-Cortez declared, “We’re going to have to figure out we rein our media environment so that you can’t just spew misinformation and disinformation” and stop people from “saying things that are false.” AOC said that members of Congress are discussing creating a “commission” to solve the problem. Politicians trust themselves to be Veracity Czars, even though only 15 percent of Americans approve of Congress. A phalanx of law professors will be happy to assist the suppression. As Michael Barone pointed out, “Yale’s Robert Post laments that ‘the formation of public opinion is out of control’; the University of California, Irvine’s Rick Hasen laments ‘a market failure when it comes to reliable information voters need’; Columbia University’s Tim Wu suggests ‘the weaponization of speech’ makes First Amendment jurisprudence ‘increasingly obsolete.’”

Is speculation about a rising censorship peril misguided, considering the euphoric atmosphere in Washington over Biden taking power? Remember that the Bush administration exploited a presidential popularity surge after the 9/11 attacks to crack down on dissent. Nor is there grounds for optimism in Biden’s half-century record in Washington. When Biden was chairman of the Senate Judiciary Committee, his civil liberties record was dreadful; he boasted of co-authoring almost 20 years of repressive legislation that helped quadruple the nation’s prison population.   

Before launching any repressive binges, Biden’s handlers might want to recall that John Adams looked like he was also on a roll, routing the political opposition with the help of that 1798 law.  Anyone wondering how that worked out should stroll around the Tidal Basin and visit the Jefferson Memorial.

James Bovard is the author of Lost RightsAttention Deficit Democracy, and Public Policy Hooligan. He is also a USA Today columnist. Follow him on Twitter @JimBovard.

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