America’s Leaders Don’t Understand the First Amendment

​The First Amendment ratified first for a reason. The founders recognized that the right to speak, free of government interference, is the foundational rule of a democracy. Before anything else, free speech is the one principle that all Americans should know – and cherish – by heart.
 
That many Americans don’t understand the First Amendment is regrettably not surprising, given the erosion of what used to be called civics education in our public schools. What is shocking is how America’s political leaders – tasked with defending the Constitution – are showing a lack of basic understanding of the First Amendment.
 
In the vice-presidential candidates’ debate, Gov. Tim Walz told his opponent Sen. J.D. Vance: “You can’t yell ‘fire’ in a crowded theater. That’s the test. That’s the Supreme Court test.” Too bad J.D. Vance, Yale Law School graduate, didn’t take the opportunity to correct this widespread misperception.
 
Gov. Walz’s reference came from an opinion written by Justice Oliver Wendell Holmes in Schenck v. United States, which upheld the conviction of one Charles Schenck under the Espionage Act for distributing flyers appealing to draft age men to resist induction into World War One. Justice Holmes upheld the man’s conviction. In peacetime, Holmes wrote, such criticism can be allowed. In wartime, however, criticizing the government of the United States is akin to his metaphor of “falsely shouting fire in a theater.” (Popular imagination later added “crowded” to this quote. Sixties activist Abbie Hoffman offered his own memorable twist, defining free speech as having the right to “shout ‘theater’ in a crowded fire.”)
 
Thus, Justice Holmes declared, opposition to America’s war effort justified “a clear and present danger” test for speech. Schenck went to prison and criticism of the war became a crime.
 
Gov. Walz seems unaware that in 1969 the Supreme Court in Brandenburg v. Ohio overturned this “clear and present danger” test. It narrowed the exception to language meant only to direct or incite “imminent lawless action.”
 
The Brandenburg standard protects all speech – even what any fair person would call “hate speech” – so long as it does not call for imminent violence.
 
Another remark from John Kerry, former U.S. Senator and Secretary of State, also garnered a lot of criticism about the need to “curb” some media entities. He told an audience at the World Economic Forum: “But look, if people only go to one source, and the source they go to is sick, and, you know, has an agenda, and they’re putting out disinformation, our First Amendment stands as a major block to the ability to be able to just, you know, hammer that out of existence.”
 
Some have defended Kerry by saying he was merely explaining to an audience with foreigners that the First Amendment prevents the government from blocking disinformation, in this instance about climate change. TechDirt’s Mike Masnick writes: “He appears to be explaining reality to a questioner from the audience who wants to suppress speech.” Perhaps. But then Kerry immediately pivoted to the need to “win the ground, win the right to govern, by hopefully winning enough votes that you’re free to implement change.” What else could that mean but a landslide election that could justify government “hammering” unapproved speech out of existence?
 
Finally, there is Donald Trump. In the recent presidential debate, ABC News factchecked Trump, but not Vice President Harris. Still, Trump’s response to this biased treatment gives us pause. Donald Trump said of ABC News: “To be honest, they’re a news organization – they have to be licensed to do it. They ought to take away their license for the way they did that.”
 
No, no and no. No, you don’t have to have a license to be a news organization. All you need is a printing press or a broadcast studio. No, ABC News does not need a broadcast license – the FCC grants those to local stations, not to networks. And no, you cannot punish a news organization for legal content.
 
Politicians of all stripes need to understand that biased reporting, hateful comments, and “disinformation” are all protected speech. There is no “they” who can take away someone’s license to speak. And any attempt to regulate social media content that is or is not “disinformation” is to inevitably create a Ministry of Truth.
 
The generous space the First Amendment leaves for speech still allows laws that curb incitement to violence, defamation, false advertisement, and obscenity. For almost two and half centuries, Americans have left it to juries to decide such cases within strict guidelines. Let’s leave it that way.
 
In the meantime, perhaps all candidates for federal office would do well to check out this excellent video from Publius No. 86.