Recently, I’ve been thinking about the First Amendment and its relationship to the idea of “misinformation.” There’s a reason the Anti-Federalists put it at the top of their list of amendments to the original U.S. Constitution. When the Founders wrote the constitution, they left out specifics in a number of areas. They reasoned that restrictions on government action in certain areas should be obvious, and didn’t need to be spelled out. The Anti-Federalists (so named by Madison because they objected to an overarching federal government – they felt it could be used to put undesirable restrictions on individual liberties) insisted on including the Bill of Rights, the first ten amendments, because they wanted the inalienable rights to be in writing and thus beyond questioning. Well before Louis B. Mayer, the Anti-Federalists knew that an oral agreement wasn’t worth the paper it was written on.
The First Amendment covers speech (and thus thought), religion, protest, and the right to tell the government when it has screwed up. I’m going to focus on speech in this rambling rant. As a reminder, here is the full text of the First Amendment.
Amendment I: 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.
So what exactly is meant by “free speech?” In the U.S. it means that pretty much anything you want to say about anything is allowed by the government. The Supreme Court (SCOTUS) has ruled some types of speech are NOT protected by the First Amendment. These include direct threats, calls for others to engage in illegal activities (e.g. “go out and kill all {specified minority} you see”), deliberately and knowingly passing on false information designed to destroy a person’s livelihood or reputation (libel and slander), provoking a riot (the yelling “fire!” in a crowded theater when there is no fire), or planning to overthrow the government (meaning get rid of what we have now and installing yourself or someone else as king or dictator). Speech determined to fall into one of these categories is not protected by the First Amendment or its penumbra of privacy.
As you can see, that leaves a whole range of things that ARE covered and CANNOT be prosecuted as a criminal offense. And that incredibly large scope of speech includes the aforementioned “misinformation” along with utterances deemed by the listener to be offensive. I saw a great quote from comedian and actor Steven Fry this morning about being offended:
“It’s now very common to hear people say, ‘I’m rather offended by that.’ As if that gives them certain rights. It’s actually nothing more… than a whine. ‘I find that offensive.’ It has no meaning; it has no purpose; it has no reason to be respected as a phrase. ‘I am offended by that.’ Well, so fucking what.”
If you’re offended or find something offensive in a speech, story, comment, joke, or question, that is on you. The speaker is in no way, shape, or form required to conform to your idea of inoffensive. Nor is society. If you find speech offensive, it is your responsibility to remove yourself from the situation. If the speech you’re hearing is truly disturbing, then the general rule of thumb is true: Sunshine is the best disinfectant. Post, repeat with attribution, that comment everywhere (although make sure it’s the full comment with full context… otherwise you’re guilty of spreading misinformation). Let others hear for themselves who said what and decide for themselves if they are as offended as you. But then, and here’s the important bit, don’t shut the person/entity up. Let them keep talking so that everybody may hear the offensive matter spewing forth. Bearing in mind of course, that you may be the only one who finds it offensive.
There are some things that, I would argue, everybody should be offended by: antisemitic comments and actions for example. Those individuals have the right to be antisemitic, but they do not have the right to require the rest of us listen to them, nor do they have the right to demand that their views are the only views allowed. And we have the right to tell them that their opinions are repugnant to civilized people.
One of the more important bits of the First Amendment are the first six words: Congress shall make no law respecting… The government CANNOT decide what we can and cannot talk about. The government CANNOT require other private entities (e.g. social media platforms) to restrict or alter the information posted on their sites. And the government and Alphabet and Meta have admitted that governmental entities (which includes federal bureaucracies) did just that – came to the company and requested or required, that certain information be removed from posts and/or search engines. In doing so, the federal government violated the First Amendment. Something which Congress never called them to task for, but that’s another rant. That information (good or bad) comes from private citizens and the government CANNOT censor private citizens who are discussing politics, voicing opinions, or voicing their dislike of policies and politicians.
That last bit has become more important over the last eight years, and especially the last four years. Documents acquired under the Freedom of Information Act (FOIA), another law that requires bureaucracies and government entities (including the White House) to turn over documentation regarding actions or issues to citizens or groups of citizens when requested.
The term “misinformation” is getting thrown around a lot and some (usually Democratic politicians and hangers-on) have argued that “misinformation” as they randomly define it, should be eradicated everywhere. I suggest that if you agree with that sentiment, you need to ask yourself, who determines what the “correct” information is, how do you know they’re actually giving out complete and accurate information, and why do you trust them to do so?
We all need to be very wary of anybody (individual or entity) who claims to have the only full and complete information. But we need to be especially wary of anybody who claims to be an expert in an area and yet insists that we cannot get their original data, nor look beyond their pronouncements for information. They may be an expert, but they are manipulating you and not allowing you to come to your own conclusions from the data. Why might they be doing that? Hmmmm…
We are living in interesting times. It’s stressful, confusing, sometimes overwhelming, and definitely disruptive. If you truly want to get back to whatever normal you prefer, you have an obligation, as a citizen, to yourself and your loved ones to stop silencing those with whom you disagree. You don’t have to listen to them, but you cannot shut them up simply because you don’t like their opinions. You have an obligation to find out all the information you can before you decide which opinions, policies, and politicians you favor. And that includes listening to arguments against your choices.
Now go listen to a speech that you think will offend you, and remember, nobody but you cares if you’re offended. Go read something that makes you a littler nervous, maybe gets you looking over your shoulder on the bus to make sure nobody can read the title, or maybe hold it up so everybody can see it and that scared looking person behind you realizes they’re not alone in what they’re thinking. Give others the courage to speak out and use that damn freedom of speech thing you’ve heard so much about.
Most importantly, respect others enough to recognize that they have the exact same rights as you.
Regarding “…planning to overthrow the government (meaning get rid of what we have now and installing yourself or someone else as king or dictator).” there is a prescribed way in the US Constitution for changing how we go about governing ourselves. That lawful way of “overthrowing” the federal government is protected by the First Amendment. What wouldn’t be protected is calling for violence to change our government.
It seems odd that a country that was founded on just such a violent action isn’t protected. There are several reasons for this, but the two most prominent to me are 1) calling for violent attacks against anyone goes beyond mere speech and involves violating the actual rights of others, and 2) Our history shows that we started protesting (for decades) what we considered unjust persecution by talking/letters to the government representatives. Our violent breakaway from the mother country was a last resort, and required a substantially large percentage of the population to be successful.
It should be noted that the line about “shouting fire in a crowded theater” was written by Oliver Wendell Holmes, Jr.—in a Supreme Court decision approving of federal censorship of publications opposing U.S. involvement in the Great War; such criticism was precisely the sort of thing he considered as dangerous as starting a mob rush for the exits. That is, it was a rhetorical justification for something very like our present-day policies against “misinformation.” I don’t think that bit of clever rhetoric deserves to be perpetuated.
Good point.