Neither Harris Nor Trump Is a Friend of Free Speech
During last week’s vice presidential debate, the Democratic candidate, Minnesota Gov. Tim Walz, asked his Republican opponent, Sen. J.D. Vance (R–Ohio), whether Donald Trump lost his 2020 bid for re-election. Because Vance did not want to choose between contradicting reality and contradicting his running mate, he dodged that question, instead posing one of his own: “Did Kamala Harris censor Americans from speaking their mind in the wake of the 2020 COVID situation?”
Although that pivot was puzzling, it rescued Vance from an uncomfortable situation while highlighting the vice president’s disregard for freedom of speech and Walz’s alarming misconceptions about the First Amendment. Yet Vance himself seems confused about the constraints imposed by that constitutional guarantee, and so does Trump.
Vance was referring to the Biden administration’s persistent pressure on social media platforms to suppress content that federal officials viewed as dangerous to public health. But even before the pandemic, Harris showed she was no friend to freedom of speech.
“We will hold social media platforms accountable for the hate infiltrating their platforms, because they have a responsibility to help fight against this threat to our democracy,” Harris, then a senator, said while seeking the Democratic presidential nomination in 2019. “If you profit off of hate, if you act as a megaphone for misinformation or cyber warfare, if you don’t police your platforms, we are going to hold you accountable.”
Like Harris, Walz thinks the First Amendment is no barrier to government censorship of “hate speech” or “misinformation,” as he made clear in a 2022 MSNBC interview. When Vance alluded to those comments during the debate, Walz doubled down.
“You can’t yell ‘fire’ in a crowded theater,” Walz declared. “That’s the Supreme Court test.”
That misbegotten, misleading, and much-abused analogy, which comes from a 1919 case in which the justices unanimously upheld the Espionage Act convictions of two Socialist Party leaders who had distributed anti-draft flyers during World War I, is not now and never has been “the Supreme Court test.” The Court in that case applied the “clear and present danger” test, which it repudiated half a century later in favor of a standard that makes it much harder to punish people for controversial speech.
The latter case, which involved
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