When members of the Ashland County Democratic Party set up a booth at their local fair last month, they might have expected a few political disagreements. What they surely didn’t expect was to be expelled from the fairgrounds and reported to the Secret Service over buttons expressing opposition to President Donald Trump. Now, they’re suing the officials who trampled their First Amendment rights.
The booth displayed various buttons depicting red MAGA-style hats, but instead of “Make America Great Again,” they said things such as “Fascist,” “Resist,” “Felon,” and “8647” (meaning to eighty-six, or remove, the 47th president, Trump).
According to the lawsuit, the trouble started when fair officials told booth staffers they’d received complaints about two particular buttons. One read “Felon” and, beneath that, “Is he dead yet?” The other said “Fascism” and, beneath that, “One day, we will wake up to his obituary.” Officials said the buttons weren’t “family friendly” and had to go. Booth staff had already put them away, but that didn’t get them off the hook.
Officials later returned to the booth with sheriff’s deputies and ordered the group to “pack up and leave.” The sheriff’s office then reported the matter to the Secret Service and began weighing criminal charges over the allegedly “threatening” buttons.
None of this should have happened. As the complaint explains, and as FIRE told the sheriff and fair board in a September letter, the First Amendment squarely protects the buttons’ political messages. That’s true even if the speech offends others or expresses a wish (serious or not) for someone’s demise. By ordering the removal of the buttons and ejecting the Ashland Democrats from the fairgrounds, county officials engaged in classic viewpoint discrimination.
The unwritten “family friendly” standard is far too vague to survive constitutional scrutiny. As this case shows, vague rules invite arbitrary and selective enforcement. Other vendors freely displayed merchandise depicting or glorifying violence or drug use, yet only the Ashland Democrats were shown the exit. It’s hard to escape the conclusion that their political views drove the decision.
Some may find the buttons objectionable. That’s their right, and they’re free to voice that opinion. That exchange of views is exactly what the First Amendment is designed to protect.
Nor can officials hide behind fairgoers’ complaints. Censorship designed to appease offended onlookers is still censorship. That’s called a heckler’s veto, and it’s flatly unconstitutional.
Reporting the incident to the Secret Service only added to the constitutional violations. There’s no evidence that the Ashland Democrats were threatening to physically harm the president. In Watts v. United States, the Supreme Court reversed a Vietnam War draftee’s conviction for telling a crowd, “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” The Court recognized the statement as rhetorical, not an actual threat. The generalized slogans on the Ashland Democrats’ buttons are even further from a true threat than Watts’ direct, first-person reference to shooting President Johnson.
The First Amendment also carves out an exception for inciting imminent lawless action, but it’s extremely narrow. Speech qualifies as incitement only when it directs others to commit unlawful acts and they’re likely to do so right away. The Ashland Democrats’ buttons did neither. They expressed disdain, not directives.
The slogan “8647” is political shorthand for expressing opposition to Trump. When Joe Biden was president, a prominent conservative commentator used “8646” the same way. Both phrases even appear on Amazon merchandise. While the precise meaning may vary from one speaker to the next, it doesn’t inherently call for violence. There are ways to eighty-six a president that don’t involve violence, including impeachment and removal from office.
But even if the term is read to imply something darker, it’s still generally protected. Recall that incitement requires the speech to be likely to trigger imminent unlawful action. The idea that a fairgoer would see any of the buttons and then immediately track down the president’s whereabouts and try to kill him is, on its face, ludicrous.
Some may find the buttons objectionable. That’s their right, and they’re free to voice that opinion. That exchange of views is exactly what the First Amendment is designed to protect. What it doesn’t protect is government officials wielding power to silence speech they dislike. Ashland County officials may soon learn that lesson the hard way.
