Another Attack On Free Speech.

“Hate Speech is a code word for thought crime.” (The Britiannic Scribian)

Well, here we are. After a revolution, civil war, nine major wars against foreign powers, the great depression, the great recession, the Civil Rights Movement, and ironically the Free Speech movement, we once again find our free speech rights under attack.

The first attack on free speech, at least the first to my knowledge, was lead by President John Adams who noted “There has been more new error propagated by the press in the last ten years than in an hundred years before 1798.”¹ Being a man of action, whose party also controlled Congress, Adams had the Alien and Sedition Act of 1798 passed and signed into law. Under this Act it was a crime for anyone to publish “false, scandalous, or malicious writing” (what we call misinformation and disinformation today) against the government of the United States. I know you’ll be shocked, but the first person convicted under this Act was Matthew Lyon, a congressman running for reelection who opposed Adams’ policies.

The next wide scale attack on free speech was lead by President Wilson when he signed into law the Espionage Act of 1917 and the Sedition Act of 1918. Among other things, these Acts criminalized speech that was “disloyal, profane, scurrilous or abusive” about the United States or its symbols. Over 2,000 people were convicted under these laws. The Sedition Act was repealed in 1920. The Espionage Act stands to this day.

In 1940 FDR signed into law the Smith Act that criminalized speech used to “advocate, abet, advise, or teach” the violent destruction of the U.S. government. The Smith Act was a mainstay of the Second Red Scare and McCarthyism and used until it was finally overturned by the Supreme Court in 1957.

The one thing all three of these prior attacks on free speech had in common were they used the threat of foreign powers and/or the spread of communism to justify their unconstitutional acts. In contrast, this time the pro-censorship gang claims the threat arises from Americans who use their free speech rights to disseminate what’s deemed to be misinformation, disinformation, and hate speech. As I understand it, the pro-censorship argument is:

Too many people abuse their free speech rights by irresponsibly spreading misinformation/disinformation and engaging in hate speech, all of which are threats to both free speech and democracy. Therefore, to protect free speech and ensure the survival of our democracy, we must censor speech.

Three problems with this argument. The first is obvious - you can’t protect free speech by censoring speech. By definition, censoring speech destroys free speech. And you cannot have a democratic form of government without free speech. So contrary to the claims of the pro-censorship crowd, censoring speech will not ensure the survival of our democracy, but ensure its demise.

Second, who will be the judge of what is and isn’t misinformation, disinformation, and hate speech? The President? You choose, Biden, Trump, DeSantis, Obama? Congress? Under whose leadership - McCarthy or Pelosi? How about the Department of Justice, again under whose leadership - Garland or maybe Ashcroft? Or maybe the FBI under Wray, Comey or Hoover? Don’t like any of those choices? Well, there’s always the Department of Homeland Security under Mayorkas, at least he has some experience setting up a short lived censorship organization known by the Orwellian title of the “Disinformation Governance Board.”

Don’t want government involved, then how about academia? Good luck with that. Academia’s ideas about what is acceptable speech are extremely narrow, unevenly applied, and less than stellar. A quick scan of the Foundation for Individual Rights and Expression scares the hell out of me, and should scare the hell out of you. Need more convincing, then see The College Fix or Campus Reform. Want specific examples? Oh where to start?

1. How about professor Renee Overdyke, a sociology professor at the University of Albany who disagreed with a Pro-Life display so she shut down the students’ big screen TV. Then of course she got into a confrontation with the police…it did not end well for her.

2. Let’s not forget Professor Shellyne Rodriguez, an adjunct art professor at Hunter College in New York who trashed a pro-life display. Later she put a machete to a reporter’s neck for coming to her apartment seeking comment.

3. Then there’s Fresno State University Public Health Professor Dr. Gregory Thatcher who recruited his students to remove pro-life messages he didn’t like.

4. Next up is NYU’s Communications professor Gabrielle Gambrell who after claiming to be a supporter of free speech, explained speech “can hurt people, where there’s negative intent, there should be censorship.”

5. Then there’s the ‘let’s learn about free speech from Communist China gang.’ In discussing speech on the internet Harvard Law School professor Jack Goldsmith and University of Arizona law professor Andrew Keane Woods stated “in the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong.” I think the Chinese Uyghurs might disagree.

I could go on, but I’m afraid I’ll run out of pixels.

If neither the government or academia are acceptable, how about the press. There’s the AP who entered into a censorship deal with the Nazis in the 1930s - and even hired a SS member - so they could stay in German until 1941 - long after every other western news agency had left. That agreement ended only with America’s entry into WW II. The AP now has offices in North Korea, allegedly as a result of entering into an agreement to allow that barbaric country to censor it’s reporting.

We could go with the NY Times. Of course, the Times and its ace reporter Walter Duranty covered up, well actually lied about how Stalin was good for the USSR, including lying about the 1932-1933 Ukrainian famine, which Stalin intentionally caused. I guess 3.9 million deaths was not enough to shame them into reporting the truth, but hey they won a Pulitzer for their coverage.

Maybe the press mended it’s ways since the 1940s? Naw, think about their reporting, or lack of reporting on Operation Tailwind, Hunter’s Laptop, Russian Collusion, the Steele Dossier, Russian Disinformation, COVID, Biden family ties to corruption, the BLM riots, the January 6 riots, and the classified material found at both the Trump and Biden homes. Oh, lets not forget about their reporting on the southern border, lecturing on transgender issues, and insistence on “equity” instead of “equality.” I don’t know about you, but I’d prefer to keep the press and their lack of integrity (both left and right) as far from my civil liberties as possible.

Third, if you could find a person who is trustworthy enough to entrust with our free speech rights (which you can’t), how could they tell what is “misinformation and disinformation?” As it turns out, much of what the “experts” claimed was misinformation and disinformation turned out to be true, and much of what they claimed to be true, turned out to be misinformation and disinformation. I believe this proves John Stuart Mill’s observation that “We can never be sure that the opinion we are endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.”²

Then there’s the whole let’s ban hate speech can of worms. “Hate Speech” is at best an ill-defined amorphous term that continuously expands to consume whatever speech the pro-censorship crowd finds offensive today. There are numerus definitions of hate speech, all of which are similar but not identical, so let’s use the definition provided by Legal Dictionary:

Speech that is intended to offend, insult, intimidate, or threaten an individual or group based on a trait or attribute, such as sexual orientation, religion, color, gender, or disability.

This definition, as all hate speech definitions are, is so broad that if put into law it would criminalize all speech involving all controversial topics. In fact, under this definition expressing support for the following positions has already been deemed “hate speech” by the anti-free speech group:

1. Transwomen should not participate in female sports;

2. Grade school kids should not be exposed to sexually explicit material;

3. Opposition to the policies of politicians who happen to be a minority:

4. Our borders should be secured;

5. Abortions are wrong;

6. Sanctuary cities should share the burden of caring for illegal immigrants;

7. Providing a child with “gender affirming care” is wrong, and of course;

8. Opposing illegal immigration.

Another fear is the uneven way “Hate Speech” is applied. The latest example is it’s fine to attack Catholics over abortion but criticizing the Sisters of Perpetual Indulgence who “offend [and] insult” Catholics is “hate speech.”

Simply put, there is no one I would trust to determine which speech should be and should not be allowed. Having said that, I admit that I’m not a free speech absolutist, instead I’m a free speech maximalist. For example, we attach criminal penalties to child pornography and civil penalties to defamation, both of which are justified and both of which restrict free speech.³

The question is not should we restrict some speech, but instead how do we determine which speech we should restrict? A complicated question with a simple answer - well simple because the heavy thinking has already been done.

Since 1787 and the Constitutional Convention some of the greatest minds in American history have wrestled with the bounds of free speech. Madison, Monroe, Washington, Franklin, Hamilton, and Mason were among the leading minds that drafted the Constitution. Later John Jay would join Hamilton and Madison in writing the Federalist Papers (1787-1788), and Madison was central in drafting the Bill of Rights (1791). As great as these men’s intellect was, they did not craft the Constitution and Bill of Rights out of thin air. Instead they liberally borrowed ideas from some of the greatest minds in the history of the western world, such as Locke, Hobbes, Montesquieu, Voltaire, Adam Smith, Rousseau, and even Aristotle. They then used those ideas to craft a document that has provided the greatest breath of civil liberties ever known.

The work didn’t end with the adoption of the Constitution but continued as other intellectual giants like Jefferson, Lincoln, Holmes, Brandeis, Black, and Frankfurter continued to flush out the meaning behind the words written in 1787, again often with the help of some of the greatest minds in the western world like John Stuart Mill. But it wasn’t these great minds alone who flushed out the boundaries of our civil liberties, giants like Martin Luther King and Mario Savio’s actions forced them to address the bounds of our civil liberties.

Finally, after almost 200 years we’ve pretty much figured out the boundaries of our free speech rights. In Brandenburg v. Ohio (1969) the Court established that even inflammatory speech is protected speech unless it (1) is intended to incite imminent lawless action and (2) is likely to incite or produce such action. In United States v. Alvarez (2012) the Supremes made it clear that a lie and nothing more is protected speech and in Matal v. Tam, (2017) the Court left no doubt that hate speech is protected speech.

Now some are demanding we ignore this evolution driven by intellectual giants and censor speech because they fear misinformation and disinformation, and find hate speech offensive.

As for offensive, well I find it offensive that the self proclaimed “elites” are narcissistic enough to believe their intellect exceeds those who wrote and carefully flushed out the boundaries of the Constitution and Bill of Rights. I find it offensive that they believe their fear justifies denying others their free speech rights. Finally, I find it offensive that the new pro-censorship “elites” believe they should have the authority to determine what is, and what is not acceptable speech. To put it in their terms, I find their speech hateful and offensive.

Of more import, I believe the pro-censorship gang has just as much right to express their opinions, as dangerous as they are, as I have to express mine. I also believe that it’s past time that we use our free speech to publicly and vocally oppose the pro-censorship gang. Jester Politics has a list of addresses for every U.S. Senator, Congressman, and Congresswoman.⁴ I implore you to use that list.

No matter how noble proponents of censorship believe their ideas are, censorship inevitably leads to ever increasing government authority until one day we wake to find our civil liberties are nothing more than meaningless words written on inexpensive paper.

1. John Adams personal notes in the margin of his copy of Outlines of an Historical View of the Progress of the Human Mind.

2. John Stuart Mill, On Liberty, 3rd ed., (pg. 34), available online at Archive.org

3. This act expired or was repealed in 1802, except for the portion now titled the “Alien Enemies Act” 50 USC §§21 - 24, which was used as the authority to intern Japanese Americans in prison camps during WW II.

4. Full disclosure, I also write at Jester Politics.