Is the Legitimacy of Free Speech Absolute?
The Question
The week of February 8, 2021, marked the beginning of the second impeachment trial — a political, not a judicial, trial — of Donald Trump, former President of the United States, after the House of Representatives impeached him based on a single article of impeachment, namely the ‘incitement of insurrection’. Trump’s lawyers filed an answer brief to the article of impeachment arguing that “[l]ike all Americans, the 45th President is protected by the First Amendment of the U.S. constitution.” On February 13, 2021, in a vote of 43 (against conviction) to 57 (for conviction), the senate voted to acquit Trump. Is the legitimacy of free speech, i.e., free speech that is not punished, absolute? If not, who determines what constitutes legitimate free speech?
To answer these questions, this article draws parallels between government responses subsequent to Donald Trump’s actions in 2021 and Mahatma Gandhi’s actions in the 1920s and 1930s.
The Facts: Donald Trump in 2021
At noon on January 6, 2021, on live television, Donald Trump — at the time still the President of the United States — addressed a rally of his supporters within walking distance of the U.S. Capitol building, where the legislative branch (Congress) of the U.S. government sits. On that day, the elected members of Congress had gathered, along with Vice-President Mike Pence, to certify the presidential election results of November 2020. In other words, senators and representatives had assembled to formally accept the election of Joseph Biden and Kamala Harris as the next U.S. President and Vice-President, respectively.
While Congress was in the midst of the certification process, Trump addressed his supporters:
We have hundreds of thousands of people here…. They’re not going to take it any longer…. We took them by surprise and this year they rigged an election. They rigged it like they’ve never rigged an election before…. All of us here today do not want to see our election victory stolen by emboldened radical-left Democrats, which is what they’re doing…. We will never give up, we will never concede…. Our country has had enough. We will not take it anymore and that’s what this is all about…. We will stop the steal…. [W]e won this election and we won it by a landslide…. We will not let them silence your voices. We’re not going to let it happen, I’m not going to let it happen….
I hope Mike [Pence] is going to do the right thing. I hope so…. All Vice-President Pence has to do is send it [the presidential election results (of the electoral college)] back to the states to recertify and we become president and you are the happiest people…. We’re gathered together in the heart of our nation’s capital for one very, very basic and simple reason: to save our democracy…. And you’re the real people, you’re the people that built this nation. You’re not the people that tore down our nation…. But we look at the facts and our election was so corrupt that in the history of this country we’ve never seen anything like it…. And Mike Pence is going to have to come through for us, and if he doesn’t, that will be a, a sad day for our country….
And after this, we’re going to walk down, and I’ll be there with you…. Because you’ll never take back our country with weakness. You have to show strength and you have to be strong. We have come to demand that Congress do the right thing…. And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore….
Contrary to his promise to walk with his supporters to the U.S. Capitol, Trump returned to the White House immediately after his speech ended.
Subsequently, within less than one hour of Trump’s speech beginning, hundreds — if not thousands — of his supporters began storming the legislative building, some of them armed with guns and bombs. Out of fear, elected members of Congress and their staff hid behind barricades. At around 2:30 PM Trump tweeted that “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution….”
It was reported that the Department of Defense, an executive branch agency under the control of the President, repeatedly denied requests to authorize deployment of National Guard troops to help quell the violence. Thus, for lack of protection, the U.S. Capitol was not secured until well into the evening. Days later, federal prosecutors revealed that rioters had intended “to capture and assassinate elected officials.” In one case, prosecutors said the charges “involve active participation in an insurrection attempting to violently overthrow the United States government.”
At least five people died as a direct result of the insurrection.
As of this article’s publication date, Donald Trump has not been criminally charged, convicted, or jailed for incitement of insurrection.
The Facts: Insurrection and Government Overthrow in U.S. Law
The criminal law of the United States, specifically 18 U.S. Code § 2383 ¾ Rebellion or Insurrection, states:
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
A dictionary definition of insurrection is: A rising or rebellion of citizens against their government, usually manifested by acts of violence.
Furthermore, 18 U.S. Code § 2385 — Advocating Overthrow of Government states:
Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government… Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
The Facts: Freedom of Speech in U.S. Law
In 1788, after select European male representatives from all of the 13 original British settler colonies on the east coast of North America ratified the U.S. Constitution, it became the official framework of the new government of the United States. 10 amendments to the U.S. Constitution were adopted in 1791. These amendments are called the Bill of Rights. The First Amendment states in part: “Congress shall make no law… abridging the freedom of speech… or the right of the people peaceably to assemble.”
According to the National Constitution Center, the First Amendment has been interpreted to mean that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.
As held by the U.S. Supreme Court, there are generally three situations in which the government can constitutionally restrict speech under a less demanding standard: (1) certain types of speech that are of ‘low’ First Amendment value; (2) when the speaker is in a special relationship to the government; and (3) content-neutral restrictions, such as restrictions on noise and large signs.
Types of speech that are of ‘low’ First Amendment value include: (a) defamation; (b) true threats, e.g., to commit a crime; (c) fighting words, which do not include political statements that offend others and provoke them to violence; (d) obscenity, e.g., highly sexually explicit pornography; (e) child pornography; and (f) commercial advertising. It is interesting to note that the government may ban misleading commercial advertising, but generally cannot ban misleading political speech.
The Facts: British Invasion of North America and India in the 1600s via the Corporation
The British monarchy was busy in the early 1600s granting exclusive charters (letters patent) to corporations (joint-stock companies) to plunder the resources of the lands belonging to Indigenous peoples in Asia, the Americas, and Africa. One such corporation — actually two joint-stock companies — was the Virginia Company, which beginning in 1606, was granted rights over large swaths of the east coast of North America. The charter granted to the Virginia Company set into motion the conquest of all of North America and the genocide and subjugation of Indigenous peoples.
Similarly, in 1600, the East India Company was granted a royal charter by the British monarchy to begin the plunder and decimation of the Indian subcontinent (South Asia), which at the time was one of the richest regions of the world. Through a variety of deceitful and oppressive tactics — most, if not all, supported by the British government — the East India Company soon subjugated almost the entirety of the Indian sub-continent, oppressing its Indigenous peoples and extracting as much of its wealth as possible.
The Facts: Mahatma Gandhi and the Salt March in 1930
In 1857, Indian men and women rebelled against the brutal oppression of the East India Company. In an effort to quell this great Indian Uprising, the Company hanged and murdered tens of thousands of suspected rebels in the bazaar towns that lined the Ganga (Ganges) River — “probably the most bloody episode in the entire history of British colonialism.” In 1858, the British government used the events of the great Indian Uprising to strip the East India Company of its power and rule India outright in the Company’s stead.
A set of ‘laws’ the British government used to drain resources from India were the Salt Acts, which were a continuation of oppressive laws instituted over a century earlier by the East India Company. Under the Salt Acts, Indians were prohibited from collecting or selling salt, forcing them to buy salt from the British, who exercised a monopoly over the manufacture and sale of salt within India and imposed a heavy tax.
Several generations of Indian freedom fighters objected to the Salt Tax. So in March 1930, when Mahatma Gandhi wrote a letter to the British Government, making an eloquent case for abolishing the Salt Tax, Gandhi built on the work of many Indian objectors before him. In his letter to Lord Irwin, the Governor General and Viceroy of the British government in India, Gandhi informed him that he and his companions would be marching to a salt works several days walking from his ashram. He wrote further:
It is possible for you to prevent this raid… in three ways: By removing the Salt Tax; By arresting me and my party…; By sheer goondaism [brute force and hooliganism] unless every head broken is replaced….
It is not without hesitation that the step has been decided upon. I had hoped that the Government would fight the civil resisters in a civilized manner…. Instead, whilst the known leaders have been dealt with more or less according to the legal formality, the rank and file has been often savagely and in some cases even indecently assaulted. Had these been isolated cases, they might have been overlooked. But accounts have come to me from Bengal, Bihar, Utkal, U.P., Delhi and Bombay confirming the experiences of Gujarat of which I have ample evidence at my disposal. In Karachi, Peshawar and Madras the firing would appear to have been unprovoked and unnecessary. Bones have been broken, private parts have been squeezed for the purpose of making volunteers give up, to the Government valueless, to the volunteers precious salt. At Muthra an Assistant Magistrate is said to have snatched the National Flag from a ten-year-old boy, the crowd demanding restoration of the Flag thus illegally seized is reported to have been mercilessly beaten back….
Before then the reign of terrorism that has just begun overwhelms India, I feel that I must take a bolder step and if possible divert your wrath in a cleaner if mere drastic channel….
According to the science of Satyagraha, the greater the repression and lawlessness on the part of authority, the greater should be the suffering courted by the victims. Success is the certain result of suffering of the extremist character voluntarily undergone…. I say what I mean and think. And I have been saying for the last fifteen years in India, and outside for twenty years more, and repeat now that the only way to conquer violence is through non-violence pure and undefiled….
I would therefore ask you to remove the tax which many of your illustrious countrymen have condemned in unmeasured terms and which, as you could not have failed to observe, has evoked universal protest sad resentment expressed in civil disobedience. You may condemn civil disobedience as much as you like. Will you prefer violent revolt to civil disobedience? If you say, as you have said, that the civil disobedience must end in violence, history will pronounce the verdict that the British Government not bearing because not understanding non-violence, goaded human nature to violence, which it could understand and deal with. But in spite of the goading, I shall hope that God will give the people of India wisdom and strength to withstand every temptation and provocation to violence.
If, therefore, you cannot see your way to remove the Salt Tax and remove the prohibitions on private salt-making I must reluctantly commence the march adumbrated in the opening paragraph of my letter.
Lord Irwin and the British government did not abolish the Salt Tax in response to Gandhi’s letter. And so, Gandhi marched in a show of satyagraha — literally translated from Sanskrit as ‘holding firmly to the truth’ and loosely translated as civil disobedience — from his ashram in Gujarat 240 miles to the town of Dandi, on the coast of the Arabian Sea.
In a PBS LearningMedia collection, entitled Kal Penn: Gandhi’s Salt March, Henry Louis Gates, Jr. described the Salt March to have started with Gandhi and less than 100 followers, but to have ended up with 50,000 protestors in Dandi. Famously, when Gandhi reached Dandi, he defied the Salt Acts and knelt down to scoop up salt crystals from the salt sands, encouraging his fellow protestors to do the same.
The Salt March continued for months, gathering millions of Indian followers. During that time, the British arrested more than 60,000 people, with Gandhi arrested on May 5, 1930. But the satyagraha continued without him. On May 21, 1930, the poetess Sarojini Naidu led over 2,000 marchers to the Dharasana Salt Works, about 150 miles north of Mumbai. The British police viciously beat the peaceful demonstrators and arrested them.
Beginning in 1922 in India, for his non-violent protests against a foreign power that had oppressed and looted the Indian people for centuries, Gandhi was arrested several times by the British government and tried and imprisoned under section 124A of the Indian Penal Code — the sedition charge — for causing disaffection against the colonial government. Gandhi spent a total of about six years in British prison.
Section 124A of the Indian Penal Code was originally drafted by Thomas Macaulay and subsequently included in the Indian Penal Code in 1870:
Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in [India], shall be punished with [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
What is the logic behind describing the events leading up to Donald Trump’s impeachment in 2021 based on ‘incitement of insurrection’ and Mahatma Gandhi’s imprisonment in the 1920s and 1930s based on a conviction of ‘sedition’? The point is not to compare the two men, who are perhaps polar opposites in terms of character and ideals, but to compare the actions taken against them by the government at the time. To aid in such a comparison follows the application of, first, a narrow Karmalens, and then, a wide Karmalens, to the issue at hand.
What is a Karmalens?
There are myriad ways of being in and interacting with the world. All of these fall on a spectrum. Where you, I, or anyone else fall on this spectrum is determined at least in part by the radius of what I call our KARMALENS (sphere). The term Karmalens refers to an analysis of the world through the lens of Karma, i.e., of Cause and Effect. If my Karmalens is narrow, i.e., has a small radius, I will tend to adopt an INDIVIDUALISTIC way of being, meaning I will consider the effects of my actions and thoughts only on myself and extensions of myself — like my family and friends — and on my immediate surroundings — like my home and neighborhood. If my Karmalens is wide, i.e., has a large radius, I will tend to adopt a SUSTAINABLE way of being, meaning I will consider the effects of my actions and thoughts on humans, other life forms, and resources across the earth, even at large distances from myself in time and space.
Looking through a narrow Karmalens
The narrowest Karmalens one could adopt in trying to understand a government’s response to a charge of inciting insurrection or of sedition is a Karmalens with a very small radius, namely a Karmalens that takes into account only the applicable laws and the immediate facts of each case.
In the case of Donald Trump…
Taking into account only his public speech to his followers at noon on January 6, 2021, together with his tweet around 2:30 PM regarding the Vice-President, it could be argued that Donald Trump violated both Sections 2383 and 2385 of 18 U.S. Code, the laws proscribing rebellion or insurrection and advocating overthrow of government, respectively.
It could be argued that Trump “incite[d]… rebellion or insurrection against the authority of the United States” and “knowingly or willfully advocate[d]… the duty, necessity, desirability, or propriety of overthrowing… the government of the United States… by force or violence” by telling his supporters that the presidential election results had been rigged against Donald Trump and that: “we’re going to walk down…. Because you’ll never take back our country with weakness. You have to show strength and you have to be strong. We have come to demand that Congress do the right thing…. And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore….”
The maximum punishment for violating Sections 2383 and 2385 of 18 U.S. Code is imprisonment of 20 years or less and the incapability of holding any office under the United States.
However, almost two months after January 6, 2021, Donald Trump has not been criminally charged, convicted, or imprisoned. Why? There may be a range of counteracting legal principles at play. One of these is the principle of presidential immunity. However, the U.S. Supreme Court held in Nixon v. Fitzgerald that a President is not immune from criminal charges stemming from official or unofficial acts while he is in office. Thus, a more likely counteracting legal principle is the freedom of speech provision in the First Amendment, which prohibits the government from jailing people based on what they say.
In the case of Mahatma Gandhi…
Taking into account only his non-violent march to Dandi to protest the unfair Salt Tax imposed by the British government on Indians, Mahatma Gandhi was deemed to have violated section 124A of the Indian Penal Code because “by words… by visible representation, or otherwise” Gandhi “[excited] or [attempted] to excite disaffection towards… the Government established by law in [India].”
Indeed, the British government imprisoned Gandhi in 1930 for his non-violent satyagraha, as it had imprisoned him for sedition several times previously and would imprison him subsequently.
Looking through a wide Karmalens
Applying a wide Karmalens to the question at hand, namely is the legitimacy of free speech absolute, would entail extending the radius of the Karmalens sphere out in both space and time to take into account various factors. Such factors include the historical context, the legitimacy of the government and its laws, and the reasons for the insurrection.
In the case of Donald Trump, the historical context is that the present United States government was born in the late 18th century from acts of insurrection and sedition by the European settlers of the east coast of North America against their British government.
It is interesting to note that in 1795, shortly after the insurrection and sedition, the fledgling U.S. government passed a law in the third session of Congress:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the state, or states, most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia, as he shall think proper.
In other words, the men who had previously been insurrectionists, and whose European ancestors had invaded the lands of the Indigenous ‘Indian’ tribes of North America, passed a law making it illegal for the Indigenous inhabitants to ‘invade’ the United States.
The absolute legitimacy of the current U.S. government, i.e., in the context of global human rights, is a complex matter that necessitates the in-depth exploration of the history of European imperialism and the legal frameworks of various nations, and will thus not be debated here. Instead, it will merely be noted that the U.S. government claims sovereign rights over its lands by relying on the legitimacy of the original land rights granted to European colonial settlers by European monarchs. These monarchs claimed property rights over the lands of Indigenous Native Americans because the lands were not “actuallie possessed by anie Christian prince or people.”
On the other hand, the relative legitimacy of the current U.S. government, i.e., in the context of U.S. inhabitants who are not Indigenous to North America, like Donald Trump, is simpler to ascertain.
According to John Locke, the legitimacy of political authority in the civil state depends on whether the transfer of authority has happened in the right way. Whether the transfer has happened in the right way depends on individuals’ consent: “no one can be put out of this estate and subjected to the political power of another without his own consent.” As a corollary, anyone who has given their express or tacit consent to the social contract is bound to obey a state’s laws.
Thus, Donald Trump, being a fully franchised citizen of the United States and having taken the oath to abide by the U.S. Constitution when he took the presidential oath of office, consented to be governed by the laws of the United States, including 18 U.S. Code §§ 2383 and 2385, thus giving the laws relative legitimacy. Consequently, if he violated the laws governing rebellion or insurrection and advocating overthrow of government, he could legitimately be convicted and imprisoned.
As he himself stated, the reasons for Donald Trump’s incitement of insurrection were that he did not wish to accept his defeat in the 2020 presidential elections, despite multiple sources certifying that there had been no election fraud and that President Joseph Biden and Vice-President Kamala Harris had indeed won the election. More than 159 million people (66.7% of the voting-eligible population) voted in the 2020 presidential election, exercising their right to directly participate (with the complication of the electoral college) in a representative democracy, in which all men and women over the age of 18 — with the exception of non-naturalized immigrants — are theoretically included.
In stark contrast is the case of Mahatma Gandhi, whose historical context in 1930 was that the British had invaded India over two centuries earlier via the East India Company, and had continually plundered India’s wealth, while oppressing the land’s Indigenous peoples. The British government certainly did not have absolute legitimacy, as it had never been set up through the will of the Indian people it purported to govern. In fact, under British rule, Indians did not have the right to directly participate in a representative democracy. Instead, they were subjugated by foreigners via their despotic ‘laws’.
Long before Gandhi’s birth, countless Indians had fought to free themselves from the yoke of British occupation. Gandhi and his compatriots formed the last wave of these brave freedom fighters. The reason for their acts of ‘insurrection’ and ‘sedition’ was simple: to oust a foreign invader that had pillaged India for hundreds of years and continued to do so. Remarkably, instead of advocating violence, Gandhi taught non-violence as the means for protest and resistance.
According to Locke, since Gandhi and his compatriots had never expressly or tacitly consented to being governed by the British, the laws of the British government — an illegitimate government in India — could not be legitimately applied to Indians. Thus, the British never had the right to (1) define the freedom-seeking and -affirming acts of Gandhi and his compatriots to be insurrectionist or seditionist; and (2) convict and imprison Gandhi and his compatriots based on British laws imposed on the Indigenous Indian people.
In fact, if the U.S. right of freedom of speech were to be retroactively applied to Gandhi in the 1920s and 1930s, the right would have allowed him to engage in symbolic speech, which the U.S. Supreme Court in 1990 held included the act of burning the flag in protest, and so could have extended to scooping up salt from Indian salt works in defiance of the illegitimate Salt Acts of the illegitimate British government in India.
My Answer
Is the legitimacy of free speech, i.e., free speech that is not punished, absolute? If not, who determines what constitutes legitimate free speech? No, the legitimacy of free speech is not absolute, but rather depends on various factors including the historical context, the absolute and relative legitimacy of the government and its laws, and the reasons for the free speech. For better or worse, the reality is that it is the government ruling over the land an individual inhabits that determines the legitimacy of free speech, and who is punished for what speech, whether the government has absolute legitimacy or not.
EcoSocial Issues Touched upon
I try to look at the world through a wide KARMALENS, especially when I am thinking about what I take to be the 7 core ECOSOCIAL (ecological + social) issues of our time: Indigenous peoples, environment, identity, gender violence, capitalism, health, and culture. This article predominantly touches on the issues of Indigenous peoples, identity, capitalism, and culture.
