We’re Slowly Killing The First Amendment
I’ve been banging this drum a while now. Prognosis still negative.
The First Amendment isn’t dying because state actors and a political party colluded with giant tech platforms and media outlets to censor speech and sabotage elections. All of that is just a byproduct of a corrosive trend. It’s clear to me that many Americans have stopped idealizing free expression. They don’t view it as a neutral value or societal good. Not even a platitude. They definitely don’t believe in counterspeech doctrine. Some people, in fact, are fine with compelling their fellow citizens to say things.
Technocrats, “journalists,” the president, and self-styled experts often view unfettered speech as a cancer that threatens “diversity” or “social justice” or “democracy” or “the environment” or “safety” or “unions” or dozens of other issues that are perched high above speech in the hierarchy of modern values. The First Amendment doesn’t work because guys in powdered wigs wrote down words — as Scalia once said, every “banana republic in the world has a bill of rights” — but because society embraces its underlying values, as they did due process or property rights. The spirit of the thing matters.
You don’t have to be a free-speech absolutist to believe that banning the president from tweeting on an allegedly neutral platform undermines the spirit of open discourse.
We are now often a society of self-censors, which, as Orwell noted, is as pernicious as any other variant. Sure, you can have your say, the leftist assures you. You just can’t have it on any platform or outlet with wide reach. Just look at the thermonuclear meltdown on the left over the sale of Twitter to Elon Musk — a man whose sin is professing to believe what any self-respecting liberal did a decade ago.
Orwell, though, was concerned that independent journalists and publishers would “keep certain topics out of print” not because they were “frightened of prosecution but because they are frightened of public opinion.” The illiberal ideologues being churned out by j-schools these days aren’t nervous about consumer blowback. I suspect reporters and producers at ABC, CBS, and NBC are not refusing to cover the “Twitter Files” because they’re trying to hide the truth, but because they can’t comprehend why social media colluding with the FBI, the Department of Homeland Security, and the White House to quash stories in the preservation of “democracy” is newsworthy to begin with.
It is. In 2017, I wrote about Trump’s threats to revoke NBC’s broadcast license for spreading fake news. Of course, NBC News has no constitutional right to that license, but threatening your critics clearly conflicts with once-accepted principles of free discourse. The same goes for Trump’s executive order empowering the White House to collect complaints of “online censorship.” Oh, how distressed liberals were over this attack on free speech.
Yet, when, in July of 2021, Jen Psaki casually noted that the White House had been “flagging problematic posts for Facebook that spread disinformation,” there was not a peep from any of them. Biden Communications Director Kate Bedingfield later contended that social media companies “should be held accountable” for the opinions of commenters, singling out “conservative outlets who are creating irresponsible content.” Joe Biden accused Facebook of “killing people” by allowing people to have their say. This is before the DHS tried to set up a Ministry of Truth.
On what constitutional grounds did the executive branch — which has the power to punish companies — get involved in monitoring the opinions of citizens on private outlets? Not a single champion of “democracy” thought to ask. (Unlike many conservatives, I am a fan of Section 230, which allows sites to host third-party content without worrying about being sued. It restrains litigiousness and allows a chaotic internet to exist. If legislators in 1996 had understood the open nature of the project, we would not have this internet. Handing government bureaucrats more power to arbitrate fairness by removing these protections — as if the state has ever bolstered dissent — would be a tragic miscalculation.)
In 1918, Woodrow Wilson and his allies passed the Sedition Act, empowering the postmaster general to censor letters, pamphlets, and books over the threat of “false reports or false statements” — which all sounds quite familiar. The authoritarian mission creep soon led to arrests, including that of a socialist presidential candidate. But Wilson didn’t only fight the scourge of misinformation and fake news with laws and cops, he did it with the help of powerful newspaper owners and business interests. The blacklisting of actors and directors by big studios in the 1950s wasn’t compelled by law, it was voluntary.
Throughout history, authoritarians have claimed that liberty must be subdued because of some perilous historical moment. That moment is now every time Democrats don’t get their way. If these people have no problem with the state and corporations that control the public square working together to dictate appropriate speech, how long is it before the idea of curbing “dangerous” “disinformation” through legislation is normalized? Maybe this iteration of the Supreme Court will offer a temporary bulwark against attacks on liberalism, but at some point, if a majority of voters stop caring, it won’t matter who owns Twitter or who sits on the court. You can’t compel people to be free.
No, we’re not going to be Stalinist Russia. We’re probably going end up much like modern Europe, a less vibrant, less free, less dynamic place. Which is bad enough. Don’t worry, you’ll still get to say whatever you want. You just won’t be able to say it anywhere important.
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