Free speech is often the first casualty of political polarization.
There are two competing American tribes that have an immense amount in common. They both loathe mass shootings and grieve for lives lost. They both propose plans to protect innocent life. They both seek to keep guns out of the hands of dangerous individuals. Yes, they have profound differences, but their motivations and intentions are remarkably similar. Moreover, America is designed from the ground up so that citizens of good will can hash out their competing ideas through political and cultural argument.
So the fight over gun rights is intense but manageable, right? Well, not if you run the city of San Francisco. Then, you label your political opponents “terrorists” and seek to use the power of government to punish anyone who associates with the people you hate.
On September 3rd, while much of America was preoccupied both by a hurricane and a ridiculous controversy over whether that hurricane ever did have its sights set on Nick Saban and his Alabama Crimson Tide, the San Francisco Board of Supervisors voted unanimously to designate the National Rifle Association a “domestic terrorist organization.”
The resolution has to be read to be believed. It accuses the NRA of using its “wealth and organizational strength” to actually “incite gun owners to acts of violence.” It further accuses the NRA of using its advocacy to “arm those individuals who would and have committed acts of terrorism.” Yet words like “incitement” and “terrorism” have actual meaning.
As a general rule, speech isn’t “incitement” unless it’s not only directed to producing “imminent lawless action,” but also likely “to produce such action.” Terrorism is also a defined term under law. A person commits an act of terrorism if they violate the criminal law with the intention of intimidating or coercing civilians, influence policy by intimidation or coercion, or “affect the conduct of government” through “mass destruction, assassination, or kidnapping.”
I quote these definitions to demonstrate the utter absurdity of the resolution. The NRA advocates lawful actions. A good portion of its advocacy is dedicated to requesting that the government more effectively enforce gun laws. Moreover, it uses lawful means to advocate lawful actions. It isn’t using criminal acts to “affect the conduct of government”; it’s using its constitutionally protected rights.
It would be one thing if the government of San Francisco was “merely” engaged in inflammatory name-calling and vicious public posturing. Government officials make dramatic and ridiculous declarations all the time. But here San Francisco goes farther. It mandates that the city and county should “take every reasonable step to assess the financial and contractual relationships our vendors and contractors have with this domestic terrorist organization” and that the city and county “should take every reasonable step to limit those entities who do business with the City and County of San Francisco from doing business with this domestic terrorist organization.”
This is a direct, viewpoint-based attack on the freedom of association of private citizens. It’s a retaliatory public attack on constitutionally protected speech. It flies in the face of recent California federal court precedent. And today, the NRA filed a lawsuit to block its enforcement.
San Francisco’s action represents a dangerous, unconstitutional escalation of a debate that is already extraordinarily fraught and divisive. By labeling law-abiding political opponents criminal and enforcing state sanctions on that basis, San Francisco is taking the path of the banana republic. It’s blasting apart “norms” and violating fundamental American values even as many of its citizens no doubt fret about authoritarianism on the right.
Yet “authoritarianism for me, but not for thee” isn’t a sustainable governing philosophy. It’s a recipe for deepening polarization, reprisals from illiberal leaders on the opposing side, and further degradation of our shared commitment to constitutional governance. Simply put, San Francisco’s resolution is dangerous to our democracy.
The resolution is so blatant that the city’s best defense is to cast it as merely “aspirational” (a word often used by universities to defend the text of their most oppressive speech codes). It will likely argue that “reasonable steps” to restrict business doesn’t mean “unconstitutional steps,” but an ordinary person reading that resolution would understand its prohibitions clearly enough — and act accordingly. The chilling effect on relationships with the NRA is profound, and the constitutional violation is clear.
Free speech is often the first casualty of political polarization. Zealous advocates are so convinced of the rightness of their position that they see opposing speech as inherently destructive. Or, in this case, as inciting violence. Yet unlawful censorship only exacerbates division. It does not resolve controversies. The NRA’s lawsuit represents a vital defense of an increasingly embattled classical liberal order. Even the NRA’s bitter political opponents should hope it succeeds.