Donald Trump’s 10 October attack on CBS for editing its 60 Minutes interview with Kamala Harris – a normal television process – is pure distraction. It is designed to draw our attention away from the fact that he was afraid to give the news magazine its traditional interview with both political candidates. Trump’s statement that the Federal Communications Commission should “take away” CBS’s broadcast license betrays his ignorance of the fact that the FCC does not license networks and foreshadows a full-on assault on free speech and freedom of the press if he becomes president.
History is clear that dictators move early to take control of the media in order to censor information unfavorable to their people. Our safety requires preventing that control, as Thomas Jefferson wrote two centuries ago: “The only security of all is in a free press. The force of public opinion cannot be resisted when permitted freely to be expressed.”
Only Rumpelstiltskin would fail to grasp how much Trump cannot tolerate criticism from the press or anyone. Attacking mainstream media is his way of desensitizing us to the important role of the press in a free society.
If you want a preview of how first amendment rights will disappear if Trump is elected president, look to his home state of Florida where Governor Ron DeSantis, his Maga copycat, runs that government in a way Trump would like to bring to the whole nation. On 9 October, we saw one of the governor’s lackeys try to carve away freedom of speech and the press, along with reproductive rights.
John Wilson, the general counsel to the state’s department of health, threatened the state’s broadcast stations with prosecution unless they removed a campaign ad promoting amendment 4. It’s the ballot measure to add abortion rights to the state’s constitution.
The amendment 4 ad featured Floridian Caroline Williams saying that she would be dead had the state’s six-week ban on abortion been in effect when her health required one in 2022. The irony of the Florida government trying to quash the ad is rich. Here we have a bare-knuckles attempt at censorship from the party that purports to oppose the “cancel culture”.
That’s not the end of the irony. The health department’s letter alleged that the pro-amendment 4 ad violated the state’s “sanitation nuisance” statute. This ground for government censorship, based as it is on a statute designed to prohibit overflowing septic tanks or unclean slaughterhouses, fails the laugh test, much less the constitution.
Still, don’t miss what’s going on here: people’s rights are not removed in one fell swoop but rather in steps. The first stage is eroding people’s expectations that freedoms are sacred and will be respected. By getting us thinking we can live with this or that little invasion of someone else’s rights, autocrats normalize those intrusions and then expand them to cover all of us. Diminishing the media’s and the public’s rights to criticize a leader is how dictatorships get started.
That’s why American law – at least in its current state – forbids what Wilson was threatening. Campaign ads are core political speech, entitled to the highest level of first amendment protection. That means that content-based restrictions on such speech must promote a compelling government interest and be the least intrusive way to promote that interest. Specifically, even false statements in the context of abortion law campaigning – and Williams’ statements in the ad were not false – must survive such strict scrutiny.
A Florida crocodile’s tears would be more compelling than Wilson’s description of Florida’s interest in protecting women from the ad’s purported “danger” – that it suggests that they need to go to other states or find unlicensed abortionists if they do not have access to an abortion in Florida. That danger arises from the statute, not the ad.
If the department of public health is so concerned about women’s safety, why not issue a regulation clarifying that doctors will not be prosecuted if, in their professional judgment, they believe that a woman has “pregnancy complications posing a serious risk of death or substantial and irreversible physical impairment”?
Without that assurance, a doctor’s decision to perform an emergency abortion is so chilled that, in effect, there is no exception to Florida’s six-week ban. Interviews with Florida doctors establish their understandable unwillingness to risk their liberty given the prospect of a district attorney second-guessing their judgment.
But whatever the ban’s impact on the practice of medicine, Wilson and DeSantis’s effort to stop groups from promoting their point of view puts all of us in jeopardy.
George Washington captured that danger at the beginning of the republic. As he put it: “The freedom of Speech may be taken away – and, dumb & silent we may be led, like sheep, to the Slaughter.” Donald Trump and Ron DeSantis, 250 years later, are sending us a clear message that our lives and our freedoms are on the ballot.
Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy
Austin Sarat, associate dean of the faculty and William Nelson Cromwell professor of jurisprudence and political science at Amherst College, is the author of Gruesome Spectacles: Botched Executions and America’s Death Penalty
