A Civics Lesson for Mr. Fetterman
Pennsylvania Lt. Gov. John Fetterman’s favorite activity since rising from mayor of Braddock, Pa., to the highest ranking marijuana legalization advocate in state government has been to appear on liberal national news outlets. His casual attire, indifferent and sarcastic demeanor, and Harvard-credentialed presumptuousness combine into the exact political character that producers love to put on television.
There’s just one problem: Along with dutifully reassuring audiences of Republican wickedness whenever called upon, Fetterman tends to reveal the authoritarian impulses common among his peers on the far left. The most recent example being his threat against the First Amendment’s guarantee of free speech.
In an interview posted by The Hill last week, Fetterman stated that “this idea that saying that Pennsylvania was ‘rigged’ or that we were ‘trying to steal the election’ — that’s a lie. And you do not have the right, that is not protected speech.”
Free speech is one of the most well-known rights established in the Bill of Rights. As Americans, we hold it to be a sacred principle that protects nearly all expression — true or false, good or bad, inflammatory or dull. To call speech “not protected” means something significant in this country. That’s why it has been one of the most highly litigated aspects of constitutional law.
As Philadelphia’s own Foundation for Individual Rights in Education (FIRE) explains, there are specific categories of unprotected speech that courts have defined over the years. They include incitement of imminent unlawful action, true threats of violence, certain obscenities, and defamation.
Fetterman has some inkling that these legal principles exist. A moment after his protected speech statement, he equated Republican’s election claims to “yelling fire in a crowded theater,” parroting a commonly repeated, but no longer relevant, statement made by Chief Justice Oliver Wendell Holmes during the U.S. v. Schenck Supreme Court case of 1919. This principle was overturned in the 1969 ruling on Brandenburg v. Ohio.
As Gabe Rottman, Legislative Counsel at the American Civil Liberties Union, once noted, “the ‘crowded theater’ quote is “worse than useless in defining the boundaries of constitutional speech.”
But even if the “crowded theater” quote wasn’t completely irrelevant, questioning the validity of an election result would not apply. It didn’t when Al Gore sued over Florida’s electoral votes in 2000 and his allies in Congress alleged “overwhelming evidence of official misconduct”. It didn’t when Hillary Clinton traversed the country spinning one conspiracy after another about voter suppression in 2016, and her allies in Congress contested the Electoral College vote. And it wouldn’t apply for President Trump and other Republicans as they decried supposed fraud in 2020.
The list of politicians who have cried foul over an election they’ve lost is long. And while few, if any, have gone about it in as persistent and corrosive a manner as President Trump, their right to speak has never been contested even if their claims were. That’s because there is a plain difference between saying something arguably false or disagreeable and inciting violence.
But respecting the differences between these types of expression is of no matter to Mr. Fetterman. He revealed an authoritarian impulse and a deficit of knowledge of basic civics by collapsing all forms of speech he doesn’t like into one category: illegal.
Tensions have run high since the election, and even higher since the riot at the U.S. Capitol. Whether the President’s speech immediately preceding the riot can legally be defined as inciting unlawful action will be debated for years to come. However, authoritarians on the left must not be allowed to jettison the constitutional principles our freedom depends on in reaction to the riot by radicals on the right.
The father of modern progressivism, President Woodrow Wilson, showed that the authoritarian left is more than willing to use the power of the state to curtail free speech on a massive scale, by fostering the enactment of the Espionage Act of 1917 and Sedition Act of 1918. It would be wise for Pennsylvanians of all stripes to keep this in mind as Mr. Fetterman readies for a likely run for U.S. Senate in 2022. With politicians like him, the First Amendment is, at best, inconvenient, and at worst, expendable.
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