There is a very American perspective implicit in this position, a dedication and commitment to upholding the letter of the law and the fundamentals of freedom as the highest principles of civilized society.
But compare:
The European Union includes a Right to Freedom of Expression in its charter, expressed in fairly expansive language: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
And yet: Germany strictly bans the expression of Nazi ideology, the display of Nazi symbols and paraphernalia, and the articulation of associated beliefs like Holocaust denial.
These would be in conflict, no? According to the principles of fundamental rights, Germany should allow Nazis to organize and advocate for themselves. And modern Nazi wannabes have, indeed, brought lawsuits on such grounds.
The resulting decisions have consistently gone against them. The justifications are of course dressed up in legal language, but the core of the rejection is, basically, too bad, get bent.
Predictably, free-speech absolutists like the Koch-funded Cato Institute decry this position as hypocritical, describing it as “disturbing” and an “attack” on freedom. People and groups sharing this Libertarian position claim not to be defending Nazi groups and thought; they say they condemn the Nazis, but they also say that a country asserting itself as a free state cannot ban expression it doesn’t like.
Germany ignores this criticism and maintains the ban, and the EU allows it. Indeed, the EU’s Charter of Fundamental Rights incorporates the European Convention on Human Rights by reference, which includes a secondary article accompanying and clarifying the right of free expression. This secondary article states that free speech carries “duties and responsibilities” and therefore certain “formalities, conditions, restrictions or penalties” may be imposed where these are considered “necessary in a democratic society” to serve parallel interests of security, safety, or other freedoms. This language tempering the absolutism of the first article was included specifically to allow Germany to make an exception for the poison of Nazism, in addition to serving the desire of other states to impose and enforce certain specific limitations, such as restricting disclosures regarding judicial proceedings in progress to allow the court to function without interference.
Naturally free-speech absolutists believe there should be no limitation on expression, and, indeed, there is a risk of abuse inherent in such exceptional language. To address this, European legal authorities have published lengthy guidance on interpreting the text and balancing the fundamental right to free expression with the need to maintain and defend a governing apparatus which allows this freedom to exist.
Basically, Europe knows from hard experience that unfettered liberty carries with it the seeds of its own destruction. The paradox of freedom is that malicious forces will exploit it, hijacking the free society with the paradoxical aim of ending those freedoms. European planners accept that there may be a contradiction in principle but the needs of reality demand the compromise. And, indeed, the World Press Freedom Index produced by Reporters without Borders consistently places European countries very highly in the world ranking, including Germany, despite the putatively hypocritical refusal to allow certain forms of expression.
What is the point of all this? As realists are fond of saying, the Constitution is not a suicide pact. Of course it must be noted that this phrase originally appeared as a dissent to a Supreme Court decision which maintained a strict doctrinaire view of free expression without regard to real-world considerations, and therefore this opposing view has no force of law. Nevertheless, it’s a powerfully worded phrase and persists as a much-repeated argument in matters like this, especially in a world where the modern conservative Court seems bound and determined to use the Constitutional language of freedom to destroy freedom with no apparent sense of irony.
As currently constituted, US law demands absolutism, so, yes, the courts are doing the “right thing” by upholding Trump’s free-speech right to run roughshod over democracy. Evidently Americans need to suffer the actual consequences of principle-above-all absolutism to understand how and why that approach will lead to self-annihilation.
So, who’s to blame for Trump’s oversteps in law? I would argue no specific party is at fault, and rather we should blame the general American mindset that it’s preferable to lock one’s feet into the concrete shoes of the First Amendment and sink into a watery grave than it is to recognize that Trump represents an exceptional threat which requires an exceptional response in order to, y’know, defend democracy.