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The First Amendment Protects Dirt


One of the most ludicrous aspects of the Trump-Russia brouhaha is the infamous meeting in Trump Tower between Trump campaign officials and Russian lobbyists. The Russians had promised to reveal campaign “dirt” about Hillary Clinton.

That meeting has caused Trump critics to go ballistic. Why is that? Because, they are saying, the “dirt” constituted an illegal contribution to the Trump campaign. Federal law prohibits foreigners from making campaign contributions to U.S. candidates, and it prohibits U.S. candidates from receiving, soliciting, or accepting a campaign contribution from foreigners.

The controversy only goes to show how desperate the Trump critics are to remove Trump from office before the 2020 presidential elections.

Let’s imagine that Mueller secures a criminal indictment against the Trump officials for violation of the campaign law that prohibits foreigners from donating to U.S. candidates. Imagine the following testimony at trial:

Mueller: Did you give dirt to the defendants?

Russian: Yes.

Mueller: What was the dirt?

Russian: That Hillary Clinton’s husband had an extramarital affair.

What does Mueller do then? He obviously has to show that the dirt has value because giving a candidate dirt that has zero value would be the same as not giving the candidate anything at all.

Thus, we can easily imagine Mueller calling an expert witness to the stand:

Mueller: Are you an expert on the value of political dirt?

Prosecution Expert: Yes sir. I have a Ph.D. in political dirt and I have testified in many trials regarding the value of political dirt.

Mueller: What is the value of the dirt in this case?

Prosecution Expert: That dirt is worth $50,000.

Paydirt! An illegal campaign contribution of $50,000! Remove Trump from office and lock up the malefactors!

But then the defendants call their own expert witness to the stand:

Defense counsel: The Russians told Trump campaign officials that Hillary Clinton’s husband had an affair. What is the value of that political dirt?

Defense Expert: That political dirt is worth dirt.

Of course, the defense expert’s opinion could complicate the trial even more given that there might be a difference of opinion on the value of (real) dirt.

But here’s the big question for Mueller, the U.S. mainstream press, and Trump critics: Why aren’t Russians free to say whatever they want? How can it possibly be a criminal offense under U.S. law for someone to say anything, including the utterance of political dirt?

I’ve always thought that the United States stands for the principle of freedom of speech. And doesn’t the First Amendment prohibit the federal government from infringing on freedom of speech?

Yes, I know what the Trump critics would say: that the Constitution doesn’t give rights to Russians. But actually, as we libertarians have long pointed out, the Constitution doesn’t give anyone any rights. Instead, it enumerates the limited powers of the federal government. At the risk of belaboring the obvious, such enumerated powers do not include the power to infringe on anyone’s rights, including the right of free speech.

To make certain that federal officials got the message, our ancestors demanded the enactment of the First Amendment. It expressly prohibits the federal government from infringing on freedom of speech. And that protection applies to everyone, not just American citizens.

Let’s not forget the Declaration of Independence, the document that Americans, including Trump critics, celebrate every Fourth of July. It says that everyone has been endowed with natural, God-given rights. “Everyone” includes Russians. Natural, God-given rights include liberty, which includes freedom of speech.

The fact that U.S. national-security state officials hate Russians and the fact that the U.S. mainstream press and Trump critics hate Trump and wish that Clinton had won the election is quite irrelevant. Like everyone else, Russians have the fundamental, God-given right to speak to people, including U.S. political candidates, and to say whatever they want to them. Moreover, everyone, including political candidates, has the right to listen to Russians and anyone else they wish to listen to, even if what is being said consists of dirt.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.