In Democrats' incessant prosecution of Trump, progressives ignore free speech rights

“Whoever fights monsters should see to it that in the process he does not become a monster.” Those words from philosopher Friedrich Nietzsche capture the fear that the struggle against the ideas and people we oppose will twist us into the very thing we hate.

For Democrats, that moment has come in an age of rage against former President Donald Trump in particular and conservatives in general. It's an age when reason and restraint are strangers.

In various areas, Democrats have embraced repellent concepts in the effort to silence or even jail their opponents. What is most striking is that legal arguments now used by the left were once used against the left.

Power of the state used to suppress information

As someone who was raised in a liberal, politically active Democratic family in Chicago, one of the greatest disappointments of my lifetime has been to watch the Democratic Party fight against free speech, pushing both censorship and blacklisting.

Here are a few examples:

∎ Democratic leaders for years called on social media companies to ban or suppress those with opposing views. As shown in the Twitter Files, there was a secret effort by the FBI and other agencies to engage in what I called "censorship by surrogate."

∎ President Joe Biden declared that social media companies were “killing people” by refusing to censor more citizens. Biden administration officials followed suit. Robert Califf, commissioner of the Food and Drug Administration, even declared that “misinformation” was a medical risk.

∎ Jen Easterly, who heads the Cybersecurity and Infrastructure Security Agency, extended her agency's mandate over critical infrastructure to include “our cognitive infrastructure.” The resulting censorship efforts included combating “malinformation” – described as information “based on fact, but used out of context to mislead, harm, or manipulate.”

∎ New York Democrats proposed limiting speech as a way of protecting democracy, and former Clinton administration Labor Secretary Robert Reich suggested free speech could be a form of “tyranny."

∎ A federal judge recently found that the Biden administration had orchestrated "the most massive attack against free speech in United States history." Yet, 70% of Democrats still support speech limits.

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Why 'fire in crowded theater' quote is misguided

One of the most telling moments came in a congressional hearing in February when I warned of the dangers of repeating the abuses of prior periods like the Red Scare, when censorship and blacklisting were the norm. In response, Rep. Dan Goldman, D-New York, invoked Oliver Wendell Holmes' view that free speech does not give a person the right to yell fire in a crowded theater. In other words, citizens had to be silenced because their views are dangerous to others.

When I attempted to point out that the line came from a case justifying the imprisonment of socialists for their political viewpoints, Goldman cut me off and "reclaimed his time."

Other Democrats have used the line as a mantra, despite its origins in one of our most abusive anti-free speech periods during which the government targeted political dissidents on the left.

Many today dismiss free speech concerns over the prosecution of Trump and his aides for their actions in challenging the 2020 election.

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Like others, I opposed those actions and rejected Trump's claims of systemic voting fraud. However, some of us have great reservations about the criminalization of such challenges, particularly under the type of sweeping conspiracy theory put forward by Fulton County District Attorney Fani Willis.

While the Georgia indictment contains serious charges related to some individuals, the effort to bag Trump through a sweeping racketeering claim could lead in the future to the criminalization of election challenges by both parties. At one time, such a prosecution would have raised a modicum of concern on the left.

Democrats previously opposed certification of Republican victories without supporting evidence and Democratic lawyers even challenged Republican victories on the basis of voting machines flipping the election outcome. Yet, Democrats are blind to the implications of such prosecutions for our democratic system.

Democrats' dangerous effort to bar Trump from ballot with 14th Amendment

Perhaps the most dangerous movement is an effort to extend the 14th Amendment to bar Trump from the 2024 ballot. Democrats, and some Republicans, have insisted that the 14th Amendment prevents Trump from running, given his support for “insurrection or rebellion." Yet, Trump has not been charged with incitement, let alone insurrection or rebellion.

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In support of barring Trump from the ballot, it's been falsely claimed that the New Mexico Supreme Court relied on the 14th Amendment as the basis for upholding the removal of a local official from office for participation in the Jan. 6 riot at the U.S. Capitol.

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It is telling that New Mexico District Judge Francis Mathew began his decision in the case with a long quotation from Judge Peter Stenger Grosscup, who in 1894 cracked down on union organizers as rebels and insurrectionists.

Grosscup not only declared union organizers to be insurgents but also added (as Mathew approvingly quoted) that “every person who knowingly incites, aids, or abets them, no matter what his motives may be, is likewise an insurgent.” Grosscup called for federal troops to put down union organizers and later resigned under allegations of improper conduct.

None of this seems to penetrate Democrats' rage. In pursuing Trump, progressives are citing the same legal authority once used to justify imprisoning socialists and union organizers. And like their anti-free speech predecessors, they're blind to the implications of these arguments.

They are transfixed on the enemy at hand rather than what they risk becoming themselves.

In warning about the danger of fighting monsters, Nietzsche added that, "If you gaze long enough into an abyss, the abyss will gaze back into you.”

Jonathan Turley, a member of USA TODAY's Board of Contributors, is the Shapiro professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley

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This article originally appeared on USA TODAY: Can Constitution ban Trump from running? It's a shaky legal argument