STOP THE ENEMIES OF FREE SPEECH
For 232 years, the First Amendment has prohibited Congress from “abridging the freedom of speech, or of the press.” Over that time, the Supreme Court has repeatedly reinforced our country’s robust protections against state censorship.
But today a powerful censorship movement spanning government officials, mainstream media, Big Tech, and civic groups seems to believe that the digital world is too dangerous for the First Amendment. It asserts that a new scourge of “disinformation” and “misinformation” requires they control what speech is allowed on social media and elsewhere.
The authors of the First Amendment would reject these attacks on our most basic rights, but they would probably not be surprised.
It started with John Adams
The Founding Fathers reviled British attempts to license the press and impose prior restraints on speech. Yet our second president, John Adams, sought to punish false and seditious speech — unsurprisingly that of his political foes, throwing journalists and congressmen in jail.
Woodrow Wilson, Joseph McCarthy, Richard Nixon, and others similarly sought to suppress minority viewpoints. Wilson, for example, created a structure of repression to silence and imprison those who opposed American entry into World War I.
Today many claim that the country is so awash in lies, hate, and extremism that freedom of speech itself undermines democracy and sows discord. The “danger to democracy” is overblown. Free speech may express political divisions, but discord is part of democracy. Democracy requires the voices of the citizenry, however strident and contentious they may sometimes be.
The best way to counter views we disbelieve or abhor — and the only way in accord with the First Amendment — is with more speech, creating as broad a public consensus as possible.
It is not to have a self-appointed disinformation police tell Americans what they may write, publicize, read, or hear. It is not to reserve “free speech” only for established institutions like newspapers, government agencies, experts and the people whose opinions they approve.
Nor is it to accept meekly what bureaucratic or corporate elites pronounce as truth. They are not disinterested, non-political judges. Censors invariably work with propagandists who promote one-sided views, no-alternative policies, and government-approved “goodthink.”
Orwell’s “1984” seems to be their guidebook, though not in a way Orwell would accept. In a chilling 2021 statement, Jen Easterly, director of the Cybersecurity and Infrastructure Security Agency, stated that “the most critical infrastructure” she works to secure
is our “cognitive infrastructure.”
Just as worrying was last month’s Murthy v. Biden Supreme Court hearing. The case concerned pervasive federal pressure on social media companies to remove supposed disinformation from social media from 2020 to 2023. Justice Ketanji Brown Jackson seemed to worry most about a strong understanding of the First Amendment “hamstringing” government.
Yet the First Amendment primarily protects Americans from government overreach and majority tyranny. As lower courts found, federal officials had “orchestrated” a “coordinated campaign” that “jeopardized a fundamental aspect of American life.”
The campaign “arguably involves the most massive attack against free speech in United States’ history.” And most of the suppressed posts turned out to convey true or at least debatable points
Other examples show the need for more, not less, speech from the widest array of sources. Consider the Johnson administration’s lies to the American people about the Tonkin Gulf incident, or the Bush administration’s about WMD and Saddam Hussein’s ties to Osama bin Laden. Mainstream media uncritically amplified them all, and helped lead America into two disastrous wars.
In the last weeks of the 2020 election, Facebook and Twitter made it difficult or impossible to share true information from a New York Post article about politically relevant Hunter Biden emails.
The companies were reacting to a letter from former security agency officials, stating “our view that the Russians are involved” and that the release bore “all the classic earmarks of a Russian information operation.” But as was clear at the time, the officials detested Donald Trump and the emails were in fact Mr. Biden’s, as even those who censored the story now admit.
Similarly, government bureaucrats throttled dissent about covid’s possible lab origins, the terrible but predictable consequences of untested lockdowns, and the efficacy of masking, distancing and vaccines. Normal scientific inquiry and prudent policymaking should have welcomed vigorous debate on these crucial issues.
A serious engagement with the critics would have qualified, nuanced, or averted these policies, mitigating harm.
The best tool
But in all these incidents, government, corporate and media leaders suppressed critical views, tarring them as uninformed, untruthful, or even unpatriotic. Worse, the censors often turned out to be major spreaders of falsehoods themselves.
Against this onslaught, the First Amendment is the best tool Americans have to question narratives spread by the powerful — at least if journalists do their jobs as public watchdogs.
Sadly, today’s legacy press often fails this mission. Much of the media has tied itself to one or another faction, refusing to report critically on its own side and distorting the views of the other.
The Russiagate brouhaha, based on questionable information supplied to the FBI by the Hillary Clinton campaign, is a prime example. So are Donald Trump’s claims about pervasive voter fraud in the 2020 election.
Independent journalists, civil liberties advocates, and ordinary Americans using the Internet are crucial to upholding the First Amendment. No doubt this is why today’s bi-partisan censorship movement denounces social media as a cesspool of disinformation and hate.
The recent House bill to ban TikTok seems to be based as much on fear of free expression by over 150 million American users as on worries about Chinese influence. If passed, the bill’s fine-print would permit the president to ban many other online information sources based on the thinnest of alleged foreign ties. News stories on the bill rarely mention that.
Differences of opinion, varying interpretations of fact, and even contrary views of what constitutes a “fact” are intrinsic to democratic debate. A democracy’s functioning is seldom tranquil, pretty, or efficient — as America’s tumultuous, discordant, but nonetheless lengthy history proves.
Nothing about the Internet and social media changes the fundamental importance of a free and open public square — not their scale, speed, or reach, nor the ability of clever actors to manipulate their users.
Indeed, these communication tools can improve democracy. They make it possible for minority views and independent journalists to reach substantial audiences cheaply — a counterweight to the mainstream media that so often acts as handmaiden to the powerful. Those who claim to support freedom of speech, but not freedom of reach, undermine the First Amendment.
Political crusaders
Nothing about today’s disinformation crusaders changes the fact that they are political animals, not objective knowers of truth. They are people who have a large stake in certain viewpoints and who want to impose them by ruling out the competition.
The best remedy for speech we detest is a marketplace of ideas — not censorship based on tendentious reports by news-graders, factcheckers, or content moderators.
Despite soothing names such as Trusted News Initiative, Newsguard, or Center for Countering Digital Hate, these groups cannot avoid their own biases.
Outright lies, hateful speech, and the like are of course reprehensible. In narrow circumstances, the Supreme Court has made some of them legally actionable, for instance when the immediate circumstances are such that speech has a real chance of inciting imminent violence.
But in themselves words, statements, and even whole ideologies are not dangerous. Often they convey hard truths that those in positions of power seek to censor to protect themselves.
The greater danger to liberty and democracy comes from governments and corporations working together to limit America’s unique protections of free speech in the name of disinformation control.