If the government decides what's 'misinformation,' free speech is dead

The First Amendment is a "major block" to combating misinformation about climate change, said John Kerry, the former secretary of state, at a World Economic Forum panel. "Our First Amendment stands as a major block to be able to . . . hammer it out of existence," he said. "So what we need is to win the ground, win the right to govern, by hopefully winning enough votes that you're free to be able to implement change."

Hammer "misinformation" out of existence? Win enough votes to amend the Constitution?

Hillary Clinton, another former secretary of state, wants "guardrails" on free speech online. In an CNN interview, she called for removing social media platforms' immunity from prosecution for the content they carry. “If the platforms, whether it’s Facebook or Twitter, X, or Instagram or Tiktok, whatever they are, if they don’t moderate and monitor the content, we lose total control,” she told host Michael Smerconish. 

Who is the "we" that deserves "total control?" Again, it's not clear.

In an 2022 interview, Minnesota Gov. Tim Walz, a former social studies teacher, said “There’s no guarantee to free speech on misinformation or hate speech.” During the vice-presidential debate, he added that the Supreme Court had ruled "you can't shout fire in a crowded theater."

The First Amendment doesn't protect threats of "unlawful violence to a particular individual or group of individuals," writes Greg Lukianoff, president of the Foundation for Individual Rights and Expression (FIRE). The First Amendment protects misinformation, disinformation and hate speech. And you can shout "fire" in a crowded theater, if there's a fire, but not if you're "falsely shouting fire" to create a panic.

Defining “hate speech” is "incredibly subjective," he points out. The label is "little more than an excuse to go after opinions we don’t like." The Supreme Court has made it clear that speech is protected regardless of its hatefulness.

In addition"the vast majority of lies and falsehoods are protected speech, which is a very good thing," writes Lukianoff. "If the government is given the power to determine what is and is not misinformation or disinformation, free speech is dead."

He adds, "You need only to look at some of the bad calls made during the COVID-19 pandemic to see the potentially disastrous drawbacks" of letting an omniscient government decide what people can "see, read and hear."

As for "shouting fire in a crowded theater," he writes, the phrase comes from a Supreme Court opinion by Oliver Wendell Holmes that upheld the imprisonment of two people who argued that military conscription was wrong. "The Supreme Court abandoned the logic of that case in 1925," Lukianoff writes, "and rightly seeing that this line of thinking was being used to justify clearly unconstitutional censorship, outright overruled it in 1969."

Here's FIRE's video.