Fake constitutionalism is increasingly becoming a problem in America. There is a marked tendency for public officials, political commentators, and those in the media to invoke bogus constitutional principles or bogus interpretations of genuine constitutional principles. They do this mainly to cast blame on their political opponents or to shelter the otherwise unacceptable behavior of their political allies. Fake constitutionalism undermines constitutional government by spreading misconceptions about what our Constitution means.
Regrettably, the First Amendment has become one of the most fruitful areas in which fake constitutionalism thrives. It is now commonplace for Americans—even constitutional lawyers—to make inflated claims about the protections afforded by the First Amendment, extending its scope far beyond the safeguards the American Founders had in mind when they debated and wrote this essential provision of our Constitution. The most recent case in point is the misplaced outrage over the supposed violations of the First Amendment involved in the arrest of Don Lemon.

