Defending constitutionally protected free speech is at the heart of fighting the latest assault on political rights by President Joseph Biden’s Justice Department. Special counsel Jack Smith’s second indictment of former President Donald Trump would gut the First Amendment in an attempt to drive Biden’s main rival for the presidency out of the 2024 race and put him in jail.
The Bill of Rights, the post-Civil War Reconstruction amendments, and other constitutional protections are crucial for working people. It was militant struggle by artisans and farmers that won freedom of speech and assembly, due process and other rights. These are necessary whenever working people defend ourselves, build unions and engage in political activity in our own class interests.
Under capitalism, all suppression of political rights — regardless of who is targeted — “bear down upon the working class, particularly its most advanced elements. That is a law of history,” Leon Trotsky, who had been a leader of the Bolshevik-led 1917 Russian Revolution, said in 1939.
Smith’s indictment is built on conspiracy charges, because Biden’s prosecutors and the FBI have no evidence of Trump actually breaking the law. It’s based on what the former president said about the 2020 election being stolen. Trump’s opinions are speech protected by the Constitution, even if he knew what he said is false.
Democratic and Republican politicians lie all the time, to justify the exploitation and oppression that’s built into capitalist rule and to denigrate the capacities and courage of working people. Their lies get exposed in the course of working-class struggle. Answering their falsehoods — not silencing opponents — is the way to strengthen the unity and political independence of the working class.
The indictment tries to justify criminalizing political speech by invoking an anti-business-corruption law, the Sarbanes-Oxley Act, in ways it was never intended to be used. The statute was passed to stop businesses “impeding an official proceeding,” after Arthur Andersen, the auditor at energy company Enron, destroyed potentially incriminating documents in 2002.
Applying this law to political speech can be a dagger to go after the capitalist rulers’ primary enemy, the working class. What unionists say during a strike will be prosecuted by bosses who claim they’re lying. Socialist Workers Party candidates could be targeted for telling the truth about the workings of capitalist exploitation and oppression.
The judge assigned to preside over Trump’s trial is a Barack Obama appointee, Judge Tanya Chutkan. She is infamous for sentencing defendants involved in the Jan. 6, 2021, melee more harshly than government prosecutors requested.
Chutkan says that on Aug. 28 she’ll set the date for Trump’s trial. Prosecutors demand it begin within three months, while the defendant’s lawyers say years will be needed to review evidence and prepare exculpatory material. The Constitution protects the rights of the accused to get the legal defense they need.
The real reason for prosecutors’ push for haste is the 2024 elections. “The Normal Paths to Beating Trump Are Closing,” headlines an Aug. 5 New York Times piece by Ross Douthart. Some of the multiplying legal cases concocted against Trump are clearly a “partisan put-up job,” he admits, but turning him into a criminal “will work out for the Democrats.”
Smith has followed up Trump’s indictment with demands for a court order banning the former president from discussing evidence the government plans to use against him or criticizing government lawyers. This is a blatant violation of both his Sixth Amendment right to a public trial and his right to campaign freely as a candidate for president. All the while Biden, congressional Democrats, Never-Trump Republicans and the middle-class left are free to say whatever they wish about Trump.
“Historically, liberals were far more supportive of free speech than conservatives,” New York Times columnist Thomas B. Edsall wrote Aug. 2. That’s no longer true, he says, quoting liberal Catharine MacKinnon. She argues that the First Amendment was once a weapon for “socialists and pacifists, the excluded and the dispossessed,” but “over the last hundred years has mainly become a weapon of the powerful.”
Any look at the past 100 years of class struggle would tell you that’s a lie. The use of free speech and assembly marked struggles against the U.S. capitalist rulers’ entry into World Wars I and II, and the courageous working-class battles that built the industrial unions in the 1930s and uprooted Jim Crow segregation and terror in the 1950s and ’60s. These rights were needed to resist witch hunts carried out by both Democratic and Republican administrations.
Throughout the past century, the working class and its most class-conscious leaders have had to constantly combat the erosion of constitutional freedoms by the government and the rulers’ political police, the FBI. Under Democratic President Franklin D. Roosevelt, leaders of the Teamsters union and the Socialist Workers Party were framed up and imprisoned for their class-struggle views.
MacKinnon goes on to complain free speech today has “become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections in the dark.”
Edsall traces liberals’ turn against the First Amendment to concern “over the potential harm free speech could inflict on marginalized groups.” He points to liberals’ push to criminalize “hate speech.”
Liberal Supreme Court Justice Elena Kagan joins the growing outcry against the First Amendment, complaining it has become “weaponized.”
Liberals go after Supreme Court
Part of the liberals’ assault on the Constitution is their attempt to gut its separation of powers and to use Congress to eviscerate the authority of the Supreme Court out of their political hatred for the court majority.
Last month the Senate Judiciary Committee adopted the so-called Supreme Court Ethics, Recusal and Transparency Act. It would give Congress free rein to dig into and punish the conduct of the justices and to force them to recuse themselves from cases. “We’re just at the beginning,” said Democratic Sen. Sheldon Whitehouse.
New York Times writer Jamelle Bouie complains Democrats don’t have the votes to carry out this attack on the Constitution. But, “the necessary first step” is “to undermine the court’s legitimacy.”
In contrast, Justice Samuel Alito made the obvious point, “Congress did not create the court,” he told the Wall Street Journal. “No provision in the Constitution gives them the authority to regulate the Supreme Court.”
Defending constitutional liberties will continue to be at the center of U.S. politics throughout the 2024 presidential campaign. Defense of free speech means demanding Smith’s charges against Trump be dropped.