Speaking Truth to Power

In Texas, a husband and wife showed their disdain for the current presidential administration with a succinct message from a sticker affixed to the window of their truck. The local sheriff took umbrage at that and sent word to them saying that, were they to come to some “… agreement regarding a modification to it,” the couple could avoid a charge of disturbing the peace.

The Texas chapter of the American Civil Liberties Union decided to come to the woman’s aid and even offered to teach that sheriff the case law regarding such displays of political opinion. Nearly four decades ago, a California man expressed a similar attitude regarding the war in Vietnam. He was convicted of disturbing the peace, but the Supreme Court of the United States overturned that conviction and upheld the man’s First Amendment rights even though he expressed them with profanity.

Attempts to stifle speech are typical of the current administration and its followers, as can be seen in these two examples:

In October 2017, the current administration threatened the press because of unfavorable coverage, prompting a senator to ask the FCC to step in.

In May 2017, Chief of Staff Reince Preibus spoke to ABC News about the administration’s desire to allow the members of the administration to sue a news organization for criticism, which would roll back New York Times v. Sullivan and its core requirement that there can be finding of liability in the “absence of malice”.

President Nixon threatened a television station in Florida owned by the Washington Post during the Watergate scandal for its coverage. Generally, the consensus of the legal profession is that the nation’s chief executive has the responsibility of enforcing the law, not breaking it. After the ACLU pointed out the sheriff’s error based on the case law, he backed down swiftly and issued a statement through a press conference that there was never any real plan to press any charges or issue any citations.

Despots throughout history have attempted to control the free dissemination of information. From “shooting the messenger,” whether metaphorically or literally, to enacting, or attempting to enact, laws that would restrict the press, these rulers have sought to follow Machiavelli’s advice and “avoid being despised or hated.” Further, by attempting to restrict the right of free speech, they also follow the Italian’s maxim of, to keep his state, “… a prince is … very often forced to do evil.”

Another of Machiavelli’s directions to aspiring princes, this one implied instead of expressed, is to distract one’s subjects by creating things for them either to admire or hate so that their attention does not fall upon the aforementioned princes. In ancient Rome, for example, the gladiatorial games at the Colosseum occupied the masses’ attentions from Commodus and his rapacious excesses.

Certain followers of the current administration seem to want to steer attention away from their “fearless leader” by ostracizing those who criticize him, such as the couple who posted the sticker on their truck. Indirectly, they are “doing the evil” of which Machiavelli approved and by their actions have absolved the president from acting evilly. The sheriff, as one of those followers, attempted to use his executive power to squash someone else’s free expression that broke no law and advocated no violence nor any such breaking of the law.

It is against this mindset that the ACLU stands. It is, after all, 2018 , and “the ends justify the means” is widely seen as an abhorrent philosophy. This sheriff’s actions, and those of the presidential administration he supports, consist of both wrong means and suspect ends.

Sujit Choudhry is the Director of the Center for Constitutional Transitions. For more information visit LinkedIn or connect via Facebook.