We Are Living in Dangerous Times
Whether the weeks seem longer before or since the election is a question best left to historians and philosophers. What is certain today is we are living in remarkably dangerous times in the United States and there is perhaps no better example of this than the December 1st events in Georgia.
To refresh our collective memories, Georgia is a politically essential national battleground for two reasons: It is where two run-off elections will determine the Georgia senators and the power balance in the Senate itself. It is also one of the states in which the Trump campaign is disputing the presidential election result.
On December 1, this powerful video of Gabriel Sterling, Georgia’s voting systems manager — a registered Republican — went viral. In the video, Sterling held a press conference in which he pleaded with President Trump and his followers to stop harassment and threats of violence and death aimed at Georgia election workers and officials.
As one of the top officials in the Georgia voting structure, Sterling unequivocally stated that the actions of President Trump and his followers would result in people being killed. He added that those who use their voice and position to attack Georgia’s election system are, in his words, complicit in the many threats against election workers, including the well-publicized death threats against Georgia Secretary of State Brad Raffensperger and his family.
An impassioned Sterling said: “It has all gone too far… Mr. President, you have not condemned this language or these actions. Senators, you have not condemned this language or these actions.”
Why Is This A First Amendment Issue?
Because the type of violent speech we are seeing in Georgia is not protected by the First Amendment.
The First Amendment is one of the most important amendments for the protection of American democracy. Designed to protect free speech, the First Amendment allows our opinions to be voiced publicly and to have them published, as mine are here today, without the government being able to stop them.
Yet in the landmark case of Brandenburg v. Ohio, the Supreme Court established that speech advocating illegal conduct is protected under the First Amendment unless the speech is likely to incite “imminent lawless action.”
The operative word is “imminent,” and this was clearly Sterling’s message in Georgia. While it is true that in cases following Brandenburg, the Supreme Court sought to clarify that vague threats of violence were protected by the First Amendment, this is not the case in Georgia.
Not only is it Georgia Secretary of State Brad Raffensperger and his family who are receiving death threats, in his viral speech, Sterling clearly stated that a 20-year-old voting company employee received death threats and was made the subject of the online dissemination of a noose image stating that he should be put to death — “hung for treason.”
This really is a textbook case of why America has a First Amendment and exactly the nature and scope of speech this powerful constitutional amendment was NOT designed to protect. The protections of the First Amendment begin with the goal of the preservation of democracy and end exactly where we find ourselves in Georgia.
Do We Need a 28th Amendment To Modify The First Amendment?
The fact that we even need to consider such a bizarre question should give us pause.
We are living in an era where a significant percentage of the electorate are calling for an expansion of the First Amendment. They argue that private actors such as Twitter and Facebook exert government-like control over online communications and online forums, and are therefore analogous to governmental actors and should not be able to limit speech.
Their voices are echoed by legal scholars including David L. Hudson, Jr, who, writing in the American Bar Association’s Human Rights Magazine, argues that individual self-fulfillment — often associated with the liberty theory — posits that people need and crave the ability to express themselves to become fully functioning individuals. Censorship stunts personal growth and individual expansion.
Yet the events in Georgia this week show the nation on a political, legal and arguably moral slippery slope from which recovery is slow and aspirational.
Looking to the current ideologically conservative Supreme Court for guidance here may be equally aspirational, so perhaps the answer lies in legislation and further constitutional amendments to protect people and their voices placed in jeopardy by the current views of our First Amendment.
