The past few years have seen quite a few teeth being gnashed on the topic of the First Amendment being in trouble. Most of the gnashing involves social media, and it all started around 2020, when several big platforms tried to rein in election lies and COVID misinformation. Some thoughts:
- During this initial period, the president was Donald Trump. His administration was Republican.
- Despite a fair amount of hysteria, the government never came close to doing anything coercive regarding speech. It was mostly worried about foreign election interference and COVID misinformation, and passed along its findings to social media companies. They responded to some and not to others.
- In the case of COVID in particular, conservatives have been mostly up in arms about the government suppressing theories related to a lab leak origin for the virus. But that barely ever came up. Public health officials were almost solely concerned about things like vaccine myths, mask wearing, hydroxychloroquine, and so forth.
- There have been some cases of speech suppression: for example, Twitter suppressed tweets about Hunter Biden's laptop for a few hours and banned President Trump after January 6. But those were purely private actions that don't implicate the First Amendment at all.
- More broadly, there's a widely held right-wing view that social media companies are biased against conservatives. This also doesn't implicate the First Amendment, and it's mostly pure paranoia anyway. There's virtually no evidence to back it up.
- The most egregious cases that involve government interference in speech have involved private entities that are in the business of flagging misinformation. They have been routinely hounded out of business by threats from congressional Republicans.
- There is an ongoing battle over Section 230, which allows online platforms a great deal of latitude to decide what content to allow and what content to take down. Republicans generally want tighter limits on what can be removed. Democrats want tighter limits on what's allowed. It's hard to take sides on this since both parties are being anti-free speech here. On the other hand, Congress has been flapping its gums about this for several years and nothing has been done yet, so it's also fair to say that both parties remain reluctant to meddle with free speech.¹
- Tim Walz recently said hate speech wasn't protected by the First Amendment. With a few minor exceptions, he was wrong about that.
- By far, most "free speech" controversy concerns people yelling at each other and trying to get the other side to shut up. This is not remotely anti-First Amendment unless a public body is involved (a state university, for example, or a federal agency), and not always then. In fact, it is gloriously, chaotically pro-First Amendment. It is precisely what the First Amendment is designed to protect. Please carry on with your yelling.
Conclusion: The First Amendment is embedded pretty deeply into America's DNA. There are always people who want to make exceptions for some allegedly worthy cause or another, but they almost always get fought down. That's still the case today, and so far we're still fighting them down. Free speech remains as strong now as it's ever been in our history.
¹Or reluctant to annoy Big Tech donors, depending on how cynical you choose to be about it.
Except that many, if not the majority, or college students and professors now don't believe in free speech:
1. https://medium.com/informed-and-engaged/8-ways-college-student-views-on-free-speech-are-evolving-963334babe40
2. https://www.insidehighered.com/views/2018/12/11/what-chicago-principles-miss-when-it-comes-free-speech-and-academic-freedom-opinion
3. https://www.nytimes.com/2017/04/24/opinion/what-liberal-snowflakes-get-right-about-free-speech.html
And government agencies are coercing private companies to limit speech. For example, see National Rifle Association v. Vullo (see also Murthy v. Missouri -- reversed on standing, not constitutional issues -- something Kevin does not seem to understand in his blind partisanship).
And the presumptive VP is quoting Schenk v. United States -- a case that any liberal should lump with Lochner in the anti-canon -- on the test for government regulation of speech.
And then you have all the scary NatSec types who are pushing these notions of "misinformation" and "malinformation." For example, the State Department called Russian claims that the West blew up the Nord stream pipelines Russian disinformation. But it has now been admitted that Ukraine blew up the pipelines. Just like how Hunter's laptop was Russian disinformation until it wasn't.
And then we have freakshows like Nina Jankowicz who clearly view the information space as a realm for state-to-state combat. A viewpoint that does not even admit the theoretical importance of free speech.
This post is another example of your inability to admit when your "team" is doing something bad.
So in response to a post about government-associated infringements of free speech, you give us "students and college professors"? Tell me you're not serious without saying so.
Your other examples are far more complicated and/or nuanced than your recitation would allow anyone to consider. To take one example, the Hunter Biden laptop was genuine, and yet it is still generally suspected to also be Russian disinformation. It's not hard to wrap your head around that if you care to familiarize yourself with the details of what likely happened to the hard drive on that laptop. Notably, other than a temporary delay on the part of a few outlets, the laptop story _was never censored_. How is anyone supposed to take you seriously if your own examples are fictional?
You are also being disingenuous by eliding the obvious fact that current yammering about "free speech" from "conservatives" and the right is almost entirely about their desire to spread disinformation (COVID, 2020 election, whatever) and not about your cherry-picked examples.
You are a fool. The legal concept of free speech is downstream from the societal concept of free speech. When academia and our next generation of leaders repudiates our the societal concept of free speech you should be very concerned.
W.r.t. Hunter's laptop, your pathetic attempt to claim that something is both true and Russian disinformation is an example of how people like you are the problem. You, buttercup. You are the problem.
And seriously, "Notably, other than a temporary delay on the part of a few outlets, the laptop story _was never censored_." Twitter blocked the NYpost for 16 days.
And they did so because the FBI was telling Facebook and Twitter that the laptop was Russian disinformation - even though the FBI had the laptop in their possession (they seized it in 2019). The NatSec ghouls spent the enter summer prepping the media for a "Russian disinformation dump" that just happened to match what was in the laptop the FBI already had.
Correct: the legal "free speech" is not the same as the societal "free speech." Or to put it another way, not all free speech infringements[1] are First Amendment infringements.
These days we are much more impacted practically by what we can and can't post on social media and the Internet than some Federal or state government. And saying that "it's not a Constitutional violation" is small comfort.
Do you really think that the distinction between state-run and private colleges and other institutions is meaningful to those affected as far as any sort of ban or censorship implemented by said institution?
[1] A useful word I borrowed from the Second Amendment.
Unfortunately, as a practical matter, the Founders only sought to protect themselves from the entities they envisioned as being capable of dominating them: Government and Organized Religion.
They could not envision our more complex society and the opportunities this more complex society provides for subjugation of the individual.
They literally invented the more complex society of printed hand bill and newspapers and published books with copyright.
They totally envisioned it.
Right-wing troll gonna right-wing troll.
As predictable as the sunrise.
And not even a good troll, the ready resort to silly name calling is the icing on the disinformation 🤮.
Why are people like you trying to make free speech a right-wing issue?
What is wrong with you? What is broken in you?
Why do you want the left wing to cede the concept of free speech to the right wing?
Mostly they reject your warning because you don't understand the part about 'the government shall not."
The restriction is on the government and its institutions, not on Facebook, jabberwocking, TruthSocial, or any other platform.
That's the #1 common mistakes of most folk who whine about free speech. It's not free here, Kevin Drum has the right to limit what you can say. He's the God of Speech at jaberwocking.
+1.
First -- New York state just got slapped down because a New York government official tried to pressure banks and insurance companies not to do business with the NRA.
https://www.scotusblog.com/2024/05/supreme-court-rules-for-nra-in-first-amendment-dispute/
I think that is government action, buttercup.
Second -- the express legal protection provided by the 1st amendment is buttressed by broader norms surrounding free speech. Without the support of those broader norms, the express legal protections would quickly wither, as enterprising judges found ways to distinguish precedent. Furthermore, in our complex and interdependent modern society, individuals are exposed to other sources of coercion beyond governmental action, such as corporate action and mass harrassment.
We have half-assedly attempted to address the greater vulnerability of the modern individual through anti-discrimination law, but those are merely stopgap measures. More robust freedom of speech and association rights that covered public action generally, and not just government actions, would be a better solution.
Lackinng comprehension, aren't we?
That was government action. Free speech is a protection from government, it limits government, not orgainizations or individuals.
The restriction is on the government and its institutions, not on Facebook, jabberwocking, TruthSocial, or any other platform.
Yep. This at the end of the day is the heart of right wing anger about "free speech restrictions." Much of well-educated society—you know, the kind of folks found running social media, TV networks, blogs and the like—find the politics and worldview of the right to be ignorant, clownish and woefully imbecilic when it's not flat-out hate-filled and treasonous.
They're angry because they've failed to bring well-educated gatekeepers to their point of view.
"For example, the State Department called Russian claims that the West blew up the Nord stream pipelines Russian disinformation. But it has now been admitted that Ukraine blew up the pipelines."
So, Ukraine is "the West"? I mean, a lot of Ukrainians would be glad to hear that, but it's pretty ridiculous to say that Russian claims that "the West" blew up a pipeline are validated by Ukraine having done it.
The US knew that Ukraine was targeting the pipeline and chose not to stop Ukraine.
https://www.washingtonpost.com/national-security/2023/06/06/nord-stream-pipeline-explosion-ukraine-russia/
So we knew that Ukraine was likely behind the sabotage, and the Europeans knew (because we told them).
Why should we dictate to another sovereign country how to defend itself from a foreign invader? And no, supplying weapons doesn't necessarily mean we get to tell Ukraine how and where to use them. If we had you could make the argument that the attack was from the west.
"So we knew that Ukraine was likely behind the sabotage, and the Europeans knew (because we told them)."
Yes, we have very good intelligence services. So what?
We knew before that they were going to do it. We did not stop them. Then when it happened, we pretended that Russia did it, to prevent popular blowback from Germany over the resultant increase in gas prices. Consider the following:
"Citing Western intelligence officials, CNN said that the alleged presence of Russian vessels was being investigated as a cause of underwater explosions in the Baltic Sea, as Moscow faces accusations that it's trying to manipulate energy flows to hurt Europe."
If we had reason to believe, at the time, that the pipeline attack was Ukrainian sabotage, would that make the statements to CNN "misinformation"?
And this is hardly the only example:
https://www.nytimes.com/2022/09/19/us/politics/pentagon-social-media.html
The shit we are accusing Russia of doing? We are doing it, too.
The basic problem is that the NatSec ghouls view the information domain as a component of national power. So they want to manage the US information domain and compromise the information domains of our adversaries. Once you adopt that mindset, then the 1st amendment becomes a problem, a vulnerability ... because it limits your ability to manage the US information domain.
To be a little bit unfair to John Kerry, the first amendment is what prevents you from building societal consensus by hammering out of existence contrary sources of information.
This handwaving about Ukraine has nothing to do with free speech. Nice squid ink.
Neither of the court cases you cite have gone to trial. From the Supreme Court opinion in National Rifle Association v. Vullo:
When the case goes to trial, the NRA may be able to prove that a First Amendment violation occurred. If you can’t find a case where a First Amendment violation has been proven, rather than merely “plausibly alleged,” that suggests that First Amendment violations are rare.
As for Murthy v. Missouri, the Supreme Court stated that plaintiffs “do not point to any specific instance of content moderation that caused them identifiable harm.” Yes, the case was reversed on standing, but if the plaintiffs had been subject to government censorship, they would have had standing. The case got dismissed because plaintiffs didn’t even plausibly allege that their First Amendment rights were violated, much less prove those violations. The fact that you couldn’t find two cases where First Amendment violations were plausibly alleged is another indication that First Amendment violations are rare.
+1
Ahh, yes, 'freedom of speech is freedom to intimidate, harass, and defame.'
No, it's not.
+1
Interesting, characteristically libertarian-ish commentary feels oddly a few years out of date because the right, after Glenn Youngkin won the Virginia governor’s race as a book-banner, dropped the free speech rants and switched to “family” control or power or whatever they call it — maybe it’s “parents’ rights”?
Though I recognize some of the tech gazillionaire right is still beating the free speech drum, in a way that just shows how off topic the tech gazillionaires are in general.
And what happens if Trump wins? Do you want Trump to have the kind of power you seem so comfortable giving the Nina Jankowicz's of the world?
And I'm not sure what "parents' rights" has to do with free speech? Is this just some pathetic "Republicans are bad, too" bit?
The Republicans in general — see Ron DeSantis — have been in favor of banning books (i.e., infringing “free speech”) if that can be called a win for “parents’ rights”.
No idea what Trump will do on this. In general, seems a bit too intellectual for him.
Never heard of the Nina person.
1) "Never heard of the Nina person."
Well you should probably educate yourself, then. And on the infrastructure that she was to be in charge of (which unfortunately likely still exists). You can start here:
https://en.wikipedia.org/wiki/Nina_Jankowicz
https://x.com/thebeestang/status/1520891445103808512?lang=en
2) With regards to DeSantis - Better than Republicans is not the standard to which the Democratic party should aspire. That's like boasting you have a better human rights record than the Saudis.
Right now, in this given election, settling for "better than Republicans" is just fine. Once we have reestablished normal, instead of unhinged, we can work on refinement.
Patience, grasshopper.
+1
Looked at your link -- thanks -- which says this Nina person has published a couple of books. Which seems to me to be adding to the wave of free speech. Has she said the government should shut down some speakers?
As for the Dems being only "better than Republicans" I think your argument would be stronger if you could point to Democrats trying to ban various novels as Youngkin thought it was appropriate to do.
Based on her wiki there is nothing particularly scary with her positions unless you are someone who likes dabbling in lies to influence politics. No wonder MAGA dipshits like you are terrified of her.
+1
Kevin, I realize you live in California and are immersed in NY and DC based pundits, but in the Red states, there are laws passed on school speech regarding racism, laws against Doctors discussing certain topics with patients related to abortion, laws against what you can tell someone regarding voting registration, and even laws on how to teach evolution.
These are real laws restricting speech. The extent of state governmental attacks on free speech is relevant and should not be ignored.
Yep. About 99% of actions that could be plausibly described as violations of the first amendment emanate from the MAGA right wing.
As usual with these douchelords, they're engaging in more projection that a suburban cineplex.
critical race theory: https://www.brookings.edu/articles/why-are-states-banning-critical-race-theory/
Doctor Patient: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/07/29/court-upholds-restriction-on-doctor-patient-speech-about-guns/
and https://www.npr.org/sections/health-shots/2023/03/01/1158364163/3-abortion-bans-in-texas-leave-doctors-talking-in-code-to-pregnant-patients
Voting - a temporary victory against restriction: https://www.aclu.org/press-releases/major-victory-in-lawsuit-against-texas-anti-voter-law-s-b-1
Very good citations!
I would add that book censorship in public schools is an attack on free speech. Yes, a school board is at the tail end of government, but the impact is consequential.
The First Amendment protects freedom of speech from interference by Congress, but everywhere else it's based on whatever the state constitution says about it.
I think there should be a more general free speech amendment to the Constitution that can act against things like book bannings, special rights for religion, and micro-managing education.
That is not correct. Free speech was one of the first bill of rights amendments to be applied to the states. It is not a federal only right.
In Gitlow v. New York, 268 U.S. 652 (1925), the Supreme Court recognized that the 14th amendment extended the First Amendment right to free speech:
"For present purposes, we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U. S. 530, 259 U. S. 543, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question."
For present purposes . . .
That was about advocating the violent overthrow of government,
https://supreme.justia.com/cases/federal/us/268/652/
That limitation applies to both Federal and State governments.
Allowing the limitation of freedom of speech in that area, any other area not addressed.
It's a doctrine called "incorporation" and is a foundational aspect of Con Law courses in law school. The First Amendment is fully incorporated and impacts state governments in the same manner it impacts the federal government. For a useful overview: https://www.law.cornell.edu/wex/incorporation_doctrine#:~:text=The%20incorporation%20doctrine%20is%20a,applies%20both%20substantively%20and%20procedurally.
Thank you, that is the term I was failing to remember.
Even so, consider the literal text is 'Congress'. Would this Supreme Court not hang it's hat on that and be happy to forget anything else?
There are restrictions on the First Amendment that everyone knows about:
1. If you lie in Court or to Congress, you can be prosecuted for Perjury.
2. If you lie to a government official, you can be prosecuted for Making a False Statement.
3. If you lie in a way that harms a person or company's reputation, you can be sued for Slander or Libel.
What puzzles me is that no legislation appears to ever be enforced to prohibit lying BY a public official. Just think how handy THAT would have been in recent years!
If you use words to threaten or intimidate, that's always been unprotected by the first amendment.
Or to incite violence or criminal acts which hurt people.
Or to publish works you have no copyright to.
Trump Bibles only ones in the world to meet new criteria for purchase by Oklahoma schools,
https://www.rawstory.com/trump-bible-oklahoma-only-ones/
You can't get any more partisan than this. Not to mention the immoral and unethical attempt to skirt campaign finance laws. Our politics and how we finance it was broken before Trump, he just finished destroying it.
Demanding the publishing of a religious text is a violation of the other half of the First Amendment, too.
It absolutely is.
Grifters gonna grift.
*Everyone* is in favor of free speech for people they agree with. Until someone (of any political viewpoint) consistently stands up for the rights of people whose views they find abhorrent, I give no weight at all to their claims of support for the principle of free speech. Looking at you, JD Vance [among many others].
Okay. Great. But you support freedom of speech, right? Even when you disagree with the viewpoint expressed? Can I get at least one Amen?
Hail Satan!
+1
Yes, I do.
There's a difference between standing up for someone I find abhorrent and allowing them to publish and promote misleading, intimidating, and inciting statements.
I can do both at once.
"As strong now?" Come on, there has never been as much "free speech" in the world as there is now, by some orders of magnitude.
The internet and social media allows anyone to say anything, at any time. That is why, say China, keeps a lid on it, but we will see how long that lasts. But in the US the amount of nonsense that you simply cannot get away from is at an all time high, with no indication at all of tapering off.
With such a large amount of speech, its only understandable that there is some effort to curate it, but those efforts fail every day. Nothing is more funny that an effort to put official Bibles in schools. Might as well throw them in a drawer of every hotel room. ......... oh, wait, someone tried that already.
There's a reason why the bible is the most published book.
Intrigue on the Enchantment Under the Sea Decorations Committee at Queen of Stupid High School,
Marjorie Taylor Greene Says ‘They Can Control The Weather’,
https://www.huffpost.com/entry/marjorie-taylor-greene-hurricane-helene_n_66fff7a8e4b0c87ec5521aaf
Wow. The derp runs deep in this one...
Mr. Drum is kind enough to let me post here. He could delete my rants, but he doesn’t. And other commenters occasionally provide feedback! It’s awesome. Free speech is perfectly free.
But… I’d never talk to my coworkers like I complain here. This is self censorship. It’s fine. They are all idiots anyway. 😘🍷 cheers. Go Tigers, Royals, and… I’m torn between dodgers and padres.
Two comments:
1. The conclusion of the post is characteristically Pollyanna-ish. If Trump wins free speech will be in trouble.
2. Many, especially conservatives such as Marjorie Taylor Green, believe that free speech is their right to say anything and not to be criticized by anybody. Not quite the constitutional definition I dare say.
Hate speech is protected by the same people who think Supreme Court Justices should get tips and gratuities and don't have to report them.
No, Publicly promoted hate speech is not and should not be protected by the first amendment. It is intimidation. It is defamatory. It is inciting. And it serves no purpose to criticize the powerful, government, or further the practice of religion.
You are fucking wrong. As soon as you discriminate based solely on speech content, you open up the opportunity for all content based discrimination. For instance, you will have made it possible for someone to make what you just said illegal.
You do not actually believe in free speech unless you are willing to defend to the death the free speech rights of people you vigorously disagree with.
James Madison said: "Our First Amendment freedoms give us the right to think what we like and say what we please. And if we the people are to govern ourselves, we must have these rights, even if they are misused by a minority."
In other words, freedom of speech is not just a god given right, it is a necessary precondition for self government. And that is why the only limits on free speech in this country are those that prevent imminent harm. Hurt feelings are not imminent harm. Get over it, get over yourself, and get on with your life.
You're forgetting how conservatives (and, to be fair, progressives as well) understand the First Amendment -- it gives them the right to force you to listen.