There are limits to free speech

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

First Amendment to the Constitution of the United States

The Trumpists are decrying the loss of “Free Speech” because of the recent decisions by Twitter, Facebook and others to actually enforce their Terms of Use policies.

Free speech has long been a limited right

The common meme used to illustrate that the right to free speech is not unlimited is the idea that one does NOT have the right to “cry ‘fire’ in a crowded theater.” Once it is established that free speech is a limited right, the next question is where to draw the line.

The Supreme Court has determined that certain categories of speech should receive lesser or no protection from the First Amendment. These include obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct.

Which leads to the central issue. How far should we allow people to use our public airwaves, and our common (though corporate owned) online media tools, to lie and deceive? Does the United States promise to it’s citizens an unlimited right to lie – and to use those lies to manipulate others? The answer to that question is “no.”

Citizens have a duty to defend truth

Recent weeks and months have taught us a painful lesson. There is truth and there are lies. Lies told for power and for profit. And each of us has a duty and responsibility, as citizens, as Americans, and especially as leaders – leaders who have pledged to honor our Constitution and protect our nation — to defend the truth and to defeat the lies.

President Joseph R. Biden

There have long been conspiracies to lie to the American people for power and profit. Fox News, megachurch evangelicals, and “conservative” radio have been joined by the One America News Network (OAN), Newsmax, Sinclair Broadcasting and others in telling lies for profit.

It is extremely telling that efforts to label or block online lies is considered to be “unfair” or “censorship” by conservatives. Why would they be angry about Twitter labeling misinformation unless they were guilty of peddling lies?

Citizens in a democracy need timely, accurate, relevant, and truthful information in order to make informed decisions. Those who control our information sources have a responsibility to provide information in as honest and unbiased a way possible. Those who deliberately create lies and disinformation for their own personal gain are threats to our society and should expect to face consequences.

“More speech” has proven inadequate

I have long believed that the solution to false speech is simply more speech – that the solution to evil is better education. This is a nice ideal, but the reality of our current situation has shown it to be naive.

The problem is that some people or groups have much more power than others. The realm of ideas is not an equal playing field. Far too many people have proven to be helpless in the face of well-funded, psychologically sophisticated, prejudice-reinforcing, tribally distributed, disinformation.

It has been reported that after Trump and some of his key allies were suspended from social media, misinformation about the so-called “election fraud” dropped by 71 percent. This means that Trump, himself, was a primary source of online misinformation. This is why I have no problem with his social media accounts being closed. He is dangerous to the health of rational civic discourse.

Rejecting the lies

The Republicans need strong medicine to lead them to repentance. They habitually resort to lies to sell their unpopular programs. They frequently blur the distinction between fact and opinion in order to justify their misrepresentations. And Trump has taught them how to profit from directly selling outright lies.

Ideally, these people should be repudiated and rejected at the polling booth. But, although Joe Biden won the Presidential election, Mitch McConnell was elected to a seventh term and Lindsey Graham was elected to a fourth term during the same election. It is hard for blinded voters to see the cause of their problem.

It is encouraging that some large corporate political donors have said that they will not support those Republicans in Congress who voted to not certify Electoral College votes. Money is the language of Washington politics and these voices are usually more persuasive than those of mere constituents. Yet, this sudden corporate interest in defending the Constitution will dissipate as memories of the events of January 6, 2021 fade into the past.

This leaves the question of whether Congress will choose to discipline its own members. There may be investigations, but to actually expel a member requires a two thirds vote of either the House or the Senate. I am not going to hold my breath.

A new standard of honesty

Politics need not be a raging fire destroying everything in its path. Every disagreement doesn’t have to be a cause for total war. And, we must reject a culture in which facts themselves are manipulated and even manufactured.

President Joseph R. Biden

The best hope is that the new Biden administration, and the new Democratic-majority Congress, will set a high standard of honesty and transparency in government. Hopefully that will inspire the citizens of the United States to insist on these qualities in their elected representatives going forward.

I hope, as well, that as our recent liar-in-chief fades into obscurity (and hopefully prison) many of his acolytes will fall out of his hypnotic spell. We should patiently and gently encourage them as they wake up and rejoin reality.

Finally, I strongly believe in free speech, even beyond the government-only scope of the First Amendment. But I do not support the easy dissemination of deliberate, insidious, lies. Evil behaviors should have consequences. I will not shed a tear over Donald Trump, Steve Bannon, Roger Stone, Alex Jones, and Milo Yiannopoulos getting themselves banned from Twitter.

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Sources
Elizabeth Dwoskin and Craig Timberg, “Misinformation dropped dramatically the week after Twitter banned Trump and some allies,” The Washington Post, January 16, 2021.
Jack Brewster, “‘We All Got Played’: QAnon Followers Implode After Big Moment Never Comes,” Forbes, January 20, 2021.
Robert Reich, “Biden cannot govern from the center – ending Trumpism means radical action,” The Guardian, January 17, 2021.
Carlton F.W. Larson, ““Shouting ‘Fire’ in a Theater”: The Life and Times of Constitutional Law’s Most Enduring Analogy,” William & Mary Bill of Rights Journal, (2015) Volume 24, Issue 1, Article 6, Page 181.
David L. Hudson, Jr., “Counterspeech Doctrine,” The First Amendment Encyclopedia, December 2017.
Eliza Bechtold, “The First Amendment: what it really means for free speech and why Donald Trump is trampling on it,” The Conversation, August 5, 2019.
Jazmin Goodwin, “Corporate America halts donations to Republicans who voted to overturn the election,” CNN, January 12, 2021.
Graham Slaughter, “Trump joins short list of banned Twitter accounts, including Nazis, terrorists and former advisers,” CTV News (Canada), January 9, 2021.
Robert C. Post, “The Other Tragedy of January 6,” The Atlantic, January 10, 2021.
Louis Jacobson, “Expelling, censuring, and reprimanding members of Congress: What you need to know,” PolitiFact, January 12, 2029.
Susie Cagle, “No, You Don’t Have Free Speech Online,” Pacific Standard, June 14, 2017.