MONOKULTUR

Tidligere Guvernør for Minnesota og vicepræsident kandidat Tim Walz, har genoplivet den gamle kliché om, at det er forbudt at råbe ‘brand’ i et teater, i sin debat med hans Republikanske modstykke JD Vance

You can’t yell “Fire!” in a crowded theater. That’s the test. That’s the Supreme Court test!

Og, ræsonnerede kandidaten videre, hadtale er at betragte som at råbe ‘brand’ i et teater, ved at det foresager negative konsekvenser for andre mennesker. Misforståelsen går tilbage til en dommers bemærkninger i 1919, men blev i 1969 manet helt i jorden af USAs Højesteret. Og det er faldet flere for brystet, at en så fremtrædende politiker, ikke har styr på Amerikanernes Gudsgivne rettigheder. Magasinet Reason, der ikke er et Trump venligt organ, skriver at ”Hate speech is protected by the First Amendment”

This shouldn’t be surprising; after all, if hate speech constituted unprotected speech, it would create all sorts of problems. What counts as hateful speech is purely subjective. Religious people, for instance, might find blasphemy to be hateful—but it’s sufficiently obvious that the federal government cannot criminalize criticism of religion. Similarly, political figures might determine that their opponents running attack ads against them are examples of hateful messaging. If censorship was allowed on this basis, there would be no end in sight.

It’s incredibly common to hear otherwise informed persons try to draw some distinction between hate speech and free speech, but they are misinformed: From the standpoint of the First Amendment, there is no recognized difference. Hate speech is free speech.

Misinformation is no different. The Supreme Court has not specifically taken up the question, but it should be sufficiently obvious that people can disagree on what is true and what is false. The Enlightenment principle that undergirds the First Amendment and democracy itself is that the best way to counter bad information is to allow everyone to speak. Investing some central government authority with the power to determine what is true can backfire horribly, since the government is frequently wrong. Indeed, the COVID-19 pandemic provides a powerful illustration of why criminalizing misinformation is a fraught project: Time and time again, the expert consensus among government bureaucrats was proven to be flawed, incomplete, or flat-out wrong. People need the right to disagree with one another, and with their government. Thankfully, Americans enjoy that protection under the First Amendment. There is no misinformation exception.

Michael Shellenberger, en af heltene fra Twitter Files, skriver på X

Tim Walz had previously claimed that spreading misinformation about elections was illegal. It’s not. How could it be? If the government censored disfavored views on elections, how would we ever know if our elections were truly free and fair?

I debunked Walz’s claim on X last night, and it’s happily now been viewed over 10 million times.

As satisfying as that is, it’s still not enough. If Walz and Harris get elected, they may attempt to ramp up the censorship we have been documenting and denouncing. As such, all of us who care about freedom of speech must push ourselves to find ways to persuade our fellow citizens of the benefits of free speech over censorship.

Now, you might not feel like making the case for free speech personally to friends and family, and you certainly don’t need to.

But many people have emailed me over the last three years expressing dismay at how many Democrats they know are in favor of free speech. I share their dismay. Support among Democrats for government censorship of online misinformation grew from 40% to 70% between 2018 and 2023. It was shocking to testify before Congress on free speech issues last year only to discover how many Democrats wanted more censorship.

Det hænger også sammen med medierne, der, som The New Yorker spørger “Is It Time to Torch the Constitution?” Eller The New York Times der funderer “America’s Constitution Is Sacred. Is It Also the Biggest Threat to Our Politics?”, The Atlantic “Constitutional Change Can Suddenly Become Possible” og MSNBCs Morning Joe, der hylder en ung mand for at angive sin far til myndighederne på baggrund af de løgne MSNBCs Morning Joe selv har bildt den unge mand ind om 6. januar optøjerne ved Capitol i 2021. Og folk som Fran Lebowitz, der vil have afskaffet Højesteret fordi Trump, skriver Jonathan Turley

Lebowitz called for President Joe Biden to “dissolve the Supreme Court” despite the fact that it would violate the Constitution and remove one of the most critical protections against executive and legislative abuse.

Lebowitz insisted that the Supreme Court is a “disgrace” because, in a reference to Donald Trump, it is “completely his.” To the wild applause of the New York audience, she added: “It’s so disgraceful, this court, that it shouldn’t even be allowed to be called the Supreme Court. It’s an insult to Motown. Basically, it’s a harem. It’s Trump’s harem.”

Her views aligned with others on the left who have attacked the Constitution, the Court, and even rights like free speech as now threats to our democracy.

Senate Majority Leader Chuck Schumer previously declared in front of the Supreme Court, “I want to tell you, [Neil] Gorsuch, I want to tell you, [Brett] Kavanaugh, you have released the whirlwind, and you will pay the price.”

Rep. Alexandria Ocasio-Cortez (D-NY) announced that she wants the impeachment of all six of the conservative justices. She was immediately joined by other Democratic members.

Previously, Ocasio-Cortez admitted that she does not understand why we even have a Supreme Court. She asked “How much does the current structure benefit us? And I don’t think it does.”

Other members, such as Sen. Elizabeth Warren (D-Mass.), have called for packing the Court with additional members to immediately secure a liberal majority to rule as she desires.

Sen. Sheldon Whitehouse (D., RI), has assured voters that Vice President Kamala Harris will support the packing of the Court with a liberal majority.

Despite supporting censorship to combat “disinformation,” many on the left now eagerly spread disinformation about the Court and its rulings. Lebowitz repeated false claims about the Court’s ruling on presidential immunity, stating that the decision makes the president a “king” who “can do whatever you want.”

In reality, the Court followed the same approach that it has taken in prior conflicts between the branches.

Tilbage til dommer bemærkningerne fra 1919, som Matt Taibbi, en anden af heltene fra Twitter Files, beskriver

“‘Fire!’ in a crowded theater” was never law, nor was it ever a “Supreme Court test,” as Walz insisted. The quote is from Justice Oliver Wendell Holmes, who in a 1919 case called Schenck v. United States argued, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

That argument, however, had nothing to do with the case, among the more infamous in the court’s history. Charles Schenck and Elizabeth Baer of the Socialist Party of America were convicted of the just-passed Espionage Act for distributing leaflets opposing the draft during World War I. There was no call for violence or civil disobedience in Schenck’s pamphlets, which said things like:

”Do not submit to intimidation. You have the right to demand the repeal of any law. Exercise your right to free speech, assemblage, and petition the government for redress of grievances.“

Schenck was arrested on August 28, 1917, convicted, and sentenced to six months. He appealed on First Amendment grounds, resulting in the Supreme Court case. In arguments, Justice Holmes offered his quote as a dictum, an “ancillary opinion that doesn’t directly involve the facts… and has no binding authority,” as Trevor Timm put it in The Atlantic back in 2012 (before mainstream American commentary lost its mind). Holmes compared Schenck informing people of their right to protest to yelling “Fire!” in a crowded theater. This bizarre argument paved the way for the Court to create its ominous “Clear and Present Danger” standard affirming Schenck’s conviction. Holmes wrote the opinion:

“The question… is whether the words used are used in such circumstances… as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

“‘Fire!’ in a crowded theater” not only isn’t law, it’s a symbol of one of the darkest chapters in our history, when we passed the aforementioned Espionage Act of 1917 and the similarly heinous Sedition Act of 1918, punishing utterance of “disloyal, profane, scurrilous, or abusive language about the form of government of the United States.” This was when Attorney General Mitchell Palmer terrorized Americans with deportations, mass arrests, even torture. “Clear and present danger” cast a shadow over expression for decades. Not until the 1969 Brandenburg v. Ohio, which established the current standard barring incitement to “imminent lawless action,” was America free of the stain of the case.

The fact that Walz thinks that abomination is still law and also hasn’t corrected his belief that “hate speech” isn’t protected is odd. He first coughed up the latter hairball in a December 2022 interview with MSNBC’s Maria Teresa Kumar:

“Yes… I think we need to push back on this. There’s no guarantee to free speech on misinformation or hate speech, and especially around our democracy. Tell the truth, where the voting places are, who can vote, who’s able to be there….”

Misinformation is mostly protected, but there are exceptions like libel and fraud and disinformation about where to vote, so he could have been referring to that. However, hate speech is clearly protected, as the Court reaffirmed in 2017. Walz’s insistence to the contrary has attracted significant criticism since he became a Vice Presidential candidate. It seems unlikely someone hasn’t briefed him on the error. What gives? 

Måske fordi han er “a knucklehead”, som han selv kalder sig, eller “a buffoon”, som Scott Jennings kaldte ham på CNN, der “no understand words good”?