Can “Dark Free Speech” be a Basis for Impeachment?

Can “Dark Free Speech” be a Basis for Impeachment?

Written by Daryl Muenchau
Published 18 November 2018

But it cannot be the duty, because it is not the right, of the state to protect the public against false doctrine. The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. In this field, every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.

– U.S. Supreme Court in Thomas v. Collins, 323 U.S. 516, 545 (1945), asserting constitutional protection for lies in politics.

It is manifestly impossible for either side in [a political] dispute to obtain a totally unbiased point of view as to the other side… The only difference between ‘propaganda’ and ‘education’, really, is in the point of view. The advocacy of what we believe in is education. The advocacy of what we don’t believe in is propaganda…Political, economic and moral judgments, as we have seen, are more often expressions of crowd psychology and herd reaction than the result of the calm exercise of judgment.

– Edward Bernays commenting on the power of propaganda to sway societies in his 1923 masterpiece, Crystallizing Public Opinion

The Florida Election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed up out of nowhere, and many ballots are missing or forged. An honest vote count is no longer possible-ballots massively infected. Must go with Election Night!

– A tweet by President Trump claiming (with no evidence) that many uncounted ballots in 2018 Florida election are fraudulent and should be ignored.

The Democratic takeover of the House of Representatives has prompted talk of a potential impeachment of president Trump. The Republican Senate would not support impeachment, but the issue is whether there is a sufficient basis in evidence to proceed with impeachment despite partisan bias in either the House or the Senate. It is likely that House Democrats will continue to pursue investigations that Republicans refused to fully conduct. In the course of those investigations, evidence of impeachable actions by the president may turn up and then the House would at least in theory be obligated to consider impeaching the president. The question posed here asks if it is reasonable to consider dark free speech alone as a basis for impeachment, or whether that speech, combined with evidence of other actions such as tax evasion or treason, should ever be considered a basis for impeachment.

“Dark Free Speech” and Political Polarization

One troubling aspect of Donald Trump both as a candidate and as president has been his unrestrained and constant use of lies, deceit, unwarranted opacity, unwarranted emotional manipulation, e.g., fear, anger, distrust, creating false enemy groups, and so forth, collectively ‘dark free speech’. Trump has been assessed by experts as the worst president in US history and also the most polarizing.

Regarding his polarizing rhetoric, the survey commented:

Donald Trump is by far the most polarizing of the ranked presidents earning a 1.6 average (1 is a “most polarizing” ranking). Lincoln is the second most polarizing president of those presidents ranked. He earned a 2.5 ranking. This is close to Polk as the second most polarizing president at 2.6. Trump was ranked “most polarizing” by 95 respondents and second most polarizing by 20 respondents. For comparison, Lincoln, the second most polarizing president on average, received 20 “most polarizing” rankings and 15 second “most polarizing” rankings.

That assessment is consistent with a belief that Trump’s rhetoric is tearing American society apart. It arguably is a tool to undermine American democracy, the rule of law and democratic institutions including political opposition and a free press. Trump’s lies and deceit appear to be key tools he uses to accomplish an anti-democratic agenda, such as his attack on vote counting in the recent Florida election.

Along with alleged obstruction of justice, the House of Representatives impeached President Clinton for lying under oath to congress. That was seen as an impeachable offense. Trump has so far refused to answer questions under oath, so essentially all of his lies are constitutionally protected free speech.

As noted above, the US Supreme Court in Thomas v Collins basically threw up its hands and said that politicians can deceive and lie to the public as much as they want and it is constitutionally protected. There are a few rare exceptions but by and large, lies and deceit are standard tools of political persuasion. The argument that more speech is better than less, is commonCollins and the pro-free speech argument seems to imply that no amount or kind of free speech could ever amount to an impeachable offense.

However, Congress can decide what is an impeachable offense and what isn’t. In theory, Congress could decide that too much lying and deceit protected as free speech is nonetheless so damaging to the public interest that it can rise to the level of an impeachable offense. In one instance, the impeachment of Andrew Johnson included an article that seemed to view dark free speech as a ground for impeachment

ARTICLE 10. That said Andrew Johnson, President of the United States, unmindful of the high duties of his high office and the dignity and proprieties thereof, and of the harmony and courtesies which ought to exist and be maintained between the executive and legislative branches of the Government of the United States, designing and intending to set aside the rightful authorities and powers of Congress, did attempt to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States, and the several branches thereof, to impair and destroy the regard and respect of all the good people of the United States for the Congress and the legislative power thereof, . . . . .

Article 10 was not the main reason for impeachment of president Johnson, and the Senate ultimately voted against impeachment based on that Article.

In Johnson’s case, congressional Republicans wanted Johnson impeached for being too accommodating toward states that fought for the Confederacy. Congressional Republicans wanted punishment, not reconciliation. The House allegation that Johnson “did attempt to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States” was grounded in an allegation that Johnson’s rhetoric amounted to an impeachable high crime or misdemeanor. In the case of Article 10, the rhetoric was deemed to be partisan politics and, once the “excitement of the hour shall have been subsided”, the Senate deemed it insufficient to set an impeachment precedent on that basis.

A Moral Argument Supporting Impeachability

The anti-bias political ideology that PORP advocates consists of four core moral values or principles. Two of those morals are fidelity to facts and fidelity to less biased reason or logic. Those morals are intended to somewhat limit the ability of dark free speech including lies and divisive rhetoric to tear society apart. That can also serve to undermine the rule of law, democracy and democratic institutions such as a free press. From that moral point of view, Trump’s endless stream of lies and other polarizing dark free speech can be seen as legal but impeachable. His polarizing free speech is clearly fomenting unwarranted fear, anger, distrust, intolerance, racism and other socially harmful emotional responses.

Social science is clear that by provoking emotions, people tend to lose their capacity to think rationally. For the most part, emotion kills reason. As pointed out before, most political thinking and belief is probably generated unconsciously with little conscious control. The process is heavily driven by emotion and reactions to emotions. When the Supreme Court decided Thomas v Collins in 1945, there was no major, sustained propaganda war raging against the US as there is now. For some people, sustained anti-democratic propaganda attacks by Russia and China coupled with Trump’s rhetorical assaults on the American democracy constitute an existential threat. The current situation has not been before congress or the Supreme Court. Does the current situation amount to nothing more than a passing partisan “excitement of the hour”? Or, is the situation much more serious than that?

From an anti-bias morals and mindset point of view, it is reasonable to believe that there is an existential threat from dark free speech to civil society and liberal democracy generally. If one accepts that viewpoint, it is rational to argue that Trump’s speech alone can constitute an impeachable offense, even though he has not lied under oath and thus broken no law.

Criticisms of the Moral Argument

There will be criticism of that logic and the conclusion. Some will argue setting this precedent is very dangerous because impeaching for dark free speech alone can be abused and help a tyrant-kleptocrat rise to power by impeaching political opponents for engaging in dark free speech. That is probably true. However, the flip side is equally true. Not adopting that logic and conclusion is dangerous because free speech is being abused right now and is helping a tyrant-kleptocrat rise to power, while tearing civil society to pieces and subverting democracy and the rule of law. The power of propaganda to sway societies to adopt anti-democratic and detrimental policies is well documented.

If nothing else, the evidence is solid that dark free speech can and has been used to subvert civil society and common human decency. Edward Bernays knew that full well in 1923. He was one of the key propagandists the US federal government relied on to coax a reluctant American society into the mindless slaughter of World War I. Bernays was the teacher of the great Nazi propagandist Joseph Goebbels who revered Bernays for his amazing insights into ways to manipulate the human mind and whole societies.

Similarly, sociologist Peter Berger knew this full well in 1954, when he wrote:

Sociologists speak of ‘ideology’ in discussing views that serve to rationalize the vested interests of some group. Very frequently, such views systematically distort social reality in much the same way that an individual may neurotically deny, deform or reinterpret aspects of his life that are inconvenient to him…
The ideas by which men explain their actions are unmasked as self-deception, sales talk, the kind of ‘sincerity’ that David Riesman has aptly described as the state of mind of a man who habitually believes his own propaganda.

Depending on how it is defined, propaganda is in the ambit of dark free speech. Inevitably, partisan disputes will come from differing moral judgments about whether Trump’s speech is mostly ‘dark’ or honest.

The critical question is: how does one treat dark free speech from a non-partisan, evidence-based point of view? That question is important because the matter of impeachment generally should be far less a matter of partisan opinion than fact and logic of a politician’s words and actions as analyzed in the context of service to the public interest. In other words, impeachment is highly partisan but it should not be that way if one considers evidence and reason to be more important than party loyalty.