Free Speech, Electoral Lies, and Outright Sedition
“It’s a free country.” Most of us heard this growing up, but few of us understood the First Amendment, and its generosity toward outright inflammatory lying. Whatever the merits of “America’s Mayor,” Rudy Giuliani, he has done our democracy and electoral system no favors.
On Nov. 19, 16 days after the election and 12 days after the Associated Press (correctly) determined that Joe Biden had been elected President, Giuliani held a press conference in which he repeatedly lied about a Denver company, Dominion Voting Systems. The evident purpose of these lies was to cast doubt on the electoral result, “blow smoke” and create a sense of chaos and doubt, but his outright lying –– certainly “perfectly legal” –– is clearly a low point for free speech in America.
On its website, Dominion Voting Systems has refuted his allegations point by point. But the lie still sticks. Many Americans still believe that Trump won the election, and that it is being “stolen” by George Soros and the Democrats. One post-election poll from Politico after the AP announced Biden as the winner showed as many as seventy percent of Republicans who thought the election was rigged, even as Republicans did well in House and Senate races, and retained power in statehouse elections. Reuters noted that fifty-two percent of Republican voters believe that Biden did not “fairly” win the election.
In his quest for retaining Presidential power, President Trump –– along with many Republican leaders who dare not contradict him –– has done damage to trust in our democratic process. It’s perfectly legal to shamelessly lie, given the First Amendment, but surely it’s well beyond morally wrong. It may even be sedition.
Sedition is a serious felony punishable by fines and up to 20 years in prison and it refers to the act of inciting revolt or violence against a lawful authority with the goal of destroying or overthrowing it.
Trump’s many tweets to “liberate Michigan” and his calls for an “army” to “defend” his re-election may well qualify as deliberately inciting revolt against lawful authority. The attempted kidnapping of Michigan governor Gretchen Whitmer is just one example. As the Rolling Stone noted in September of 2020,
“He has deliberately tried to discredit and delegitimize democracy itself. By repeatedly trashing the upcoming election as rigged and corrupt, raising baseless wild charges about voting by mail, Trump has poisoned the political wells. By instructing the neo-fascist and anti-Semitic Proud Boys to “stand back” and “stand by,” and instructing his goon squads to descend on the polls to intimidate voters, he has openly called for disrupting the election. By refusing to pledge to a peaceful transition of power should he lose the election, Trump has revealed his plan for a coup d’etat, with the connivance and unswerving support of the Republican Party.”
If Trump’s self-aggrandizing play for power is allowed to stand, there will likely be further discord and violence. The First Amendment does have exceptions; as the Supreme Court observed in Gitlow, “Freedom of speech and press . . . does not protect publications or teachings which tend to subvert or imperil the government or to impede or hinder it in the performance of its governmental duties” (italics added). Here, “publication” includes public speeches, even tweets.
It’s well past time for authorities to remind Mr. Giuliani and Mr. Trump that free speech has its limits.