The tyranny of the minority: A post-Charlottesville theory of the First Amendment

The framers of the U.S. Constitution understood the protections of the First Amendment to be a bulwark against the “tyranny of the majority” — a shield to protect those with unpopular views against oppression by a popularly elected majority.  

President Donald Trump has turned this concept on its head, at least in his rhetoric. His statements have offered the support of the most powerful elected office in the land to views that the vast majority of Americans have rejected. He has, perhaps, instituted a “tyranny of the minority,” in which a (vanishingly small) minority viewpoint has not only the protections of the First Amendment behind it, but the full force of the American government at its service.

{mosads}So when free-speech advocates such as myself opine that white supremacist Richard Spencer and his supporters are entitled to First Amendment protection against the “tyranny of the majority,” our pleas often fall on deaf ears. There is a broad sense that Spencer and his ilk should not be “given a platform” for their hate, the First Amendment notwithstanding — that speech which has the imprimatur of the White House behind it, and which is so harmful to so many, is the last thing in need of protection. Thus, calls to silence fringe views have grown over the course of the past year with alarming speed.

This is dangerous territory. Banning speech is banning speech, no matter how odious that speech may be. It’s something Americans don’t do — or at least something our better angels would have us not do.  

So how to account for the apparently widespread belief that “hate speech” such as Spencer’s can and should be banned? Has there been some broad-scale, collective forgetting of the fundamental First Amendment principle that virtually all speech, no matter how noxious, deserves protection?  Have Twitter’s terms of use — which generally bar “hate speech,” while the First Amendment does not — fundamentally altered our expectations of what speech is “allowed” and what speech is not?

Perhaps. But here’s another explanation: when the president of the United States asserts that “both sides are to blame” for the violence that erupted in Charlottesville, people rightly sense that a government elected by a popular (electoral college) majority is forcing a distinctly minority viewpoint down the people’s throats — that the minority is, in some way, oppressing the majority. The First Amendment feels more like a sword wielded by the minority than a shield to protect that minority.

This sense is not unusual in the annals of U.S. presidential politics. It is not at all uncommon for a president to embrace and promote some views or policies that a majority of Americans disagree with. What is unusual, and is perhaps sui generis, is for a president to embrace (or at least fail to unequivocally denounce) views, such as neo-Nazism, that have been overwhelmingly and vehemently rejected by the vast majority of Americans — and to do so on such a broad range of issues, from climate change (which more than three-quarters of American public believe is real, but which the Trump administration questions the existence of) to the need for Trump’s border wall.

But in both a “real world” and a legal sense, this feeling is wrong: neo-Nazism is a minority viewpoint and it is thus vulnerable, from a First Amendment perspective, to majority oppression.  It is subject to protection by the courts, and the fact that the president appears to have at least tacitly endorsed it does not change the fact that an overwhelming majority views it as abhorrently fringe.

So, my advice to those who would reject the “tyranny of the majority” principle in light of the Trump administration’s perversion of the concept: This, too, shall pass. Don’t throw out your constitutional birthright for what may well be a passing outrage. Majorities change. An elected leader who repeatedly embraces truly minority views eventually will find himself in the minority at the ballot box.

To be sure, the “tyranny of the majority” concept can be an uncomfortable fit in a representative democracy. It requires the state — in practice, the courts — to protect ideas and viewpoints that a majority of voters have rejected. In a system where the government is supposed to express the popular will of the people, this “feels” like a rejection of the basic premise of democracy.  

And yet the idea is fundamental to the American project. The Founders ascribed such importance to the right of free speech (among other rights) that they enshrined it in our Constitution, to be protected irrespective of the “will of the majority” — in other words, irrespective of the basic premise of any true democracy.

With Trump’s ascension, has an ideological minority “hijacked” the force and power of the political majority? Maybe. But the proper solution, reflected in our founding principles, is to replace a “majority” that does not truly reflect a majority of the population with one that does.  This is the point of elections. Yet only time will tell whether Trump’s fringe views will harm him at the ballot box in 2020.  

David Snyder, a lawyer and journalist, is executive director of the First Amendment Coalition.