We are now barely a month away from the November election that could determine by razor-thin margins not only the President, but who holds the House and the Senate. Come November 6, the political reality of the country may change entirely. Both parties are running out of time to differentiate themselves. One issue that has gotten little attention, but has routinely reappeared, is that Democrats really seem to despise the First Amendment. Republicans have an opportunity to hammer them for it.
Last week on CNN, Hillary Clinton, former Democrat nominee for president and current spoilsport, called for the repeal of Section 230–the law that protects against frivolous lawsuits for free speech online. She claimed that a failure to more aggressively remove online content has led to a loss of “total control.” Another former Democrat nominee, John Kerry, recently described the First Amendment as “a major block to be able to just, you know, hammer [disinformation] out of existence.” That is precisely correct. Kerry should not need it explained to him that the First Amendment serves to protect the fundamental rights of Americans, not to serve as a “hammer” of government censorship.
But this trend isn’t exclusive to former Democrat candidates. The week prior to that, the self-styled “knucklehead” of Minnesota, Tim Walz, repeated the false claim during the Vice Presidential debate that the First Amendment doesn’t protect “hate speech” and that you can’t “yell fire in a crowded theater.” There is a lot to unpack here. For one, “hate speech” is indeed protected by the First Amendment, according to Supreme Court precedent. There is no doubt that contained within that category of expression are some of the most vile, wretched beliefs and opinions. But for something like the First Amendment and the concept of free speech to have any meaning, the least popular words must enjoy the same protection as the most popular–especially since beliefs and opinions change over time.
The false idea that you “can’t yell fire in a theater” stems from the case, Schenk v. United States, that has since been overturned as bad law. In that decision, the court originally ruled in favor of the government’s ability to censor speech critical of the state, something we should all agree was the wrong call. The decision that overturned Schenk, Brandenburg v. Ohio, significantly raised the bar on what qualified as unlawful speech. The speaker would have to be shown as attempting to incite “imminent, lawless action” and that the speech in question was likely to produce such action.
A sitting governor and vice presidential candidate should understand these distinctions and speak to them clearly if they are going to swear the oath of office.
Earlier this year, both President Biden and Vice President Kamala Harris endorsed an online censorship bill, marketed as a fix to children’s online safety, that would give sweeping new powers to the Federal Trade Commission (FTC) to pressure online platforms to remove broad categories of lawful speech. The current FTC Chair, Lina Khan, is now under congressional investigation over whether she used official funds to hit the campaign trail for progressive candidates.
It is clear that the most prominent Democrat leaders, past and present, are lining up to complain that the First Amendment, and the free speech of American citizens, is a chief problem facing the country. Republicans should be aggressive in pushing back against this terrifying political shift. Luckily, GOP leaders have already begun that effort. Responding to Clinton’s censorious comments, Speaker of the House Mike Johnson said in an interview with The Daily Wire, “This is what the Left is about. They want to silence opposition. They want to destroy the free marketplace of ideas because when thinking people have information it’s not good for the Marxists and Socialists.” X CEO Elon Musk, speaking at a Donald Trump rally stated that “this is no ordinary election. The other side wants to take away your freedom of speech.”
The leadership of figures like Speaker Johnson and Musk on free speech issues is vital but insufficient. More Republicans need to speak out, and the case must be made before voters. Americans must be broadly informed about the sustained effort to undermine their constitutional rights and freedom to express themselves, without government interference, censorship or coercion. What could be more fundamental to the maintenance of a healthy republic? Republicans have a responsibility to bring this message with them on the campaign trail. Voters will thank them for it.
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