Free Speech Failures on the Left and Right

Conservatives and progressives seem to agree on one thing: the First Amendment is confusing.

In these divisive times, I found one topic that conservatives and liberals agree upon: The First Amendment is confusing. This 45-word introduction to the Bill of Rights articulates arguably the most fundamental right: freedom of speech. But, for some reason, this foundational principle confounds both conservatives and progressives.

For conservatives, free speech has become particularly bewildering in the age of social media. In the years leading up to Twitter forcing Donald Trump to find a new hobby, conservatives railed against “cancel culture,” suggesting that “deplatforming” is an infringement on their First Amendment rights — as if our Founding Fathers fought to secure your constitutional right to that creepy shared account with your spouse.

As high school civics taught us, censorship requires government action; First Amendment rights generally don’t protect you from private actors. Do I have the right to come into your business and say your wife is ugly and your father assassinated John F. Kennedy? I could say that, but you could also throw me out on my butt. (Or, if you’re Ted Cruz, praise me and support my presidency.)

Implicit in the right to speak freely is the right to associate freely. To put free association in terms that conservatives should be familiar with, Mark Zuckerberg and Jack Dorsey are bakers, your social media accounts are “gay wedding cakes,” and neither Zuckerberg nor Dorsey have to bake that cake.

Meanwhile, on the left, free speech is reduced to one head-scratching cliche: “You can’t shout ‘fire’ in a crowded theater.” When I hear this, I want to douse myself in kerosene and take my chances inside the theater.

The bromide paraphrases Supreme Court Justice Oliver Wendell Holmes, who wrote in the 1919 majority decision for Schenck v. United States, “The most stringent protection of free speech would not protect a man falsely shouting ‘fire’ in a theatre and causing a panic.” Schenck involved an anti-war activist who was convicted for the dangerous act of — gulp — handing out leaflets. Turns out “a man audaciously suggesting ‘peace’ during wartime” doesn’t roll off the tongue as well.

Yes, free speech has limits (e.g., defamation, obscenity, telling your kids that Santa Claus is a Deep State conspiracy). However, this phrase is useless. Imagine finding roadkill while out for a walk with a friend. You ask, “What kind of animal is that?” Your friend responds, “Not all animals are armadillos.” Though technically true, this insight won’t help crack the case.

Fortunately, this flimsy legal reasoning was overturned in 1969 by Brandenburg v. Ohio, which established a higher standard for censorship. Where Schenck provided the government with a bazooka, Brandenburg traded down for a Red Ryder BB gun with a warped barrel.

And thank goodness. Gifting government with a broad scope to censor is akin to lending a Bowie knife to your toddler for his arts-and-crafts project.

Confusion converges politically with one specific topic: Section 230 of the Communications Decency Act. Section 230 shields internet companies from legal liability of whatever nonsense trolls and keyboard warriors post on their websites. Without 230, the internet would not be what it is today. However, spend any amount of time in the comments section and you’ll find that the current shape of the internet isn’t exactly a compelling argument.

The right and left both want to abolish 230 but for different reasons. The right believes 230 grants immunity to Silicon Valley companies, allowing them to deplatform their fellow conservatives with impunity. However, without 230, it is likely that more deplatforming would occur, because most prudent businessmen shy away from being legally liable for some manifesto-writing dude who uses the screen name “QAnon4Lyfe1776.”

Meanwhile, progressives want 230 gone because they believe it protects hate speech. Unfortunately, they define hate speech like how they identify roadkill: Whatever it is, it ain’t an armadillo.

We often discuss freedom but rarely the obligation to use it responsibly. Rights and responsibilities are two sides of the same coin. And the best place to invest this coin is within a competitive marketplace of ideas. In the dissenting opinion for Abrams v. United States (another case involving a dastardly anti-war pamphleteer), Oliver Wendell Holmes — yes, the same Holmes who worried about fiery theaters — wrote, “The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”

In this marketplace of ideas, the best investment strategy is to avoid the short-selling hucksterism of those who fail to grasp the long-term value of the freedoms protected by the First Amendment. Freedom isn’t zero-sum but rather a multiplier effect that can open up a boundless world of beauty, innovation, and nuance. When embraced responsibly, freedom pays off with dividends.

Wisenheimer. Rabblerouser. Regular dude. Literal & figurative hole digger. Grocery sherpa. Doting dad. Bylines: @reason, @cato, @FeeOnline, and others.

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