In the USA, the first amendment says that mere speech can never make a crime. Such a constitutional right has a penumbra, as the lawyers call it (many a complex case has gone to the supreme court).
Suppose a politically-incorrect remark makes it criminal for you to do what would be legal for you to do if you had not uttered it. Is it the remark that has been made criminal?
Throughout the ruling, Judge Watson concedes there’s nothing about the executive order that would be problematic if not for his interpretation of Trump’s statements made in the months and years prior to issuing it.
If it is illegal for Donald to do for four months what Barack legally did for six, solely because Obama’s speeches about immigration were always impeccably PC whereas Trump’s remarks on the 2016 campaign trail were not, are Donald’s first amendment rights violated? I’ve read plenty about a president’s constitutional right to control immigration under laws that congress had a constitutional right to enact, but what about his right to have uttered a politically incorrect opinion during the previous year? Can the same logic debar every candidate with a history of un-PC remarks from any executive position? Can an otherwise constitutional congressional law be nullified because people on the side that voted for it said un-PC things the day before – or the decade before?
If the ultimate ruling on this were that you guys across the pond could still speak your mind, but only at the cost of making acting on it illegal, then the penumbra of the first amendment would have grown short indeed – which is a surprising way to say it, since it would look to me like your free speech had become a mere shadow of itself.
[Added later] Commenter Chip expressed my post in a sentence:
Clearly, the only lawmakers who can restrict immigration are those who never said they would.
I’m glad all nine supreme court judges are not sure this is what the constitution actually says – and less glad that only three seem able to see at a glance that it is not.
