In the panicked aftermath of the 9/11 terrorist attacks, the powers-that-be dusted off wish lists of surveillance-state powers and began monitoring and tracking us in ways that affect our lives two decades later. The political turbulence of recent years, culminating in the Capitol riot on January 6, may similarly liberate the political class to do its worst—this time with free speech as the target. The effort will likely again enjoy support from members of the public eager to surrender their freedom.
"We need to shut down the influencers who radicalize people and set them on the path toward violence and sedition," argued columnist Max Boot in The Washington Post. His solution? Carriers should drop Fox News and other conservative cable news outlets if they don't stop spreading "misinformation." Boot also believes that "Biden needs to reinvigorate the FCC" to impose British-style controls over the news—never mind that the Federal Communications Commission (FCC) doesn't have the authority to regulate cable outlets that it has over broadcasters that use public airwaves.
Rep. Alexandria Ocasio-Cortez (D-N.Y.) agrees that the public needs to be protected from speech she considers false and misleading. "We're going to have to figure out how we rein in our media environment so that you can't just spew disinformation and misinformation," she insisted.
Challenging the value of unrestrained speech and debate has become something of a cottage industry. After the ugly exchanges that erupted in the Capitol riot, CNN pointed out that "questions emerge about unrestrained free expression, long championed by First Amendment theorists as a benefit to society, no matter how ugly and hateful." The network quoted scholars who conclude that the Internet and free speech protections make it too easy to exchange bad ideas.
None of these fans of speech restrictions explicitly advocate suppression of activists or ideologies; they favor controls on what they claim are false, extremist, or misleading communications. But they don't explain why reversing speech protections would accomplish their goals when misinformation existed long before modern jurisprudence, filling the pages of the country's newspapers and fueling political contests despite legal peril. Nor do they explain why they're so eager to hand more control over speech to government officials who have a historically rocky relationship with truth.
There's former President Donald Trump himself, of course, who is at the center of much of the current controversy over speech and who has a history as a serial fabulist on matters from trade to immigration to elections. A "reinvigorated" FCC exercising the powers of Max Boot's imagination would have been run by commissioners appointed, in part, by him.
That more-intrusive FCC would also have been run by commissioners appointed by Trump's predecessor, President Barack Obama. Obama, too, had a problem telling the truth about issues ranging from health care to government records and earned "the lie of the year" label from PolitiFact in 2013.
Government officials even lie to each other, as then-Director of National Intelligence James Clapper did to Congress to conceal the inconvenient truth about domestic surveillance by the NSA.
Protections for free speech, it's worth pointing out, aren't some perfect counter to false and extreme ideas. Instead, they're a recognition of core individual rights. But they're also a pragmatic acknowledgment that putting government agencies in charge of suppressing misinformation just gives one team of bullshit artists an advantage over their less-powerful competitors.
Some fans of speech suppression think they've found a solution in privatized muzzling.
"Large cable companies such as Comcast and Charter Spectrum, which carry Fox News and provide much of its revenue in the form of user fees, need to step in and kick Fox News off," urges Boot. CNN emphasizes that "the First Amendment protects against government, not private organizations, stymieing expression."
It's absolutely true that private companies have the right to control who uses their platforms and how they do so. But let's remember that there's an unpleasant history of them exercising the censor's pencil as proxies for dominant political factions, either out of sympathy or as a result of legal arm-twisting.
After evolving First Amendment jurisprudence made it safer for print media to criticize politicians, then-President Franklin Delano Roosevelt infamously held radio licenses hostage in return for positive coverage. "It did not take long for broadcasters to get the message," historian David Beito wrote for Reason in 2017. "NBC, for example, announced that it was limiting broadcasts 'contrary to the policies of the United States government.'"
That practice has become increasingly popular as a means for governments to evade accusations that they're muzzling critics.
"Of course, Twitter is a private company," Russian opposition leader Alexey Navalny cautioned after the tech giant suspended Donald Trump's account in the wake of the Capitol riot. "But we have seen many examples in Russian and China of such private companies becoming the state's best friends and the enablers when it comes to censorship."
The ultimate risk is that respect for free-wheeling speech is devalued in the eyes of many as a thing to be cherished in itself. Instead, it may become a resented obstacle to be worked around by innovators who aren't bound by allegedly archaic legal protections. They can then feel virtuous in suppressing expression they consider bad, or hateful, or an example of "misinformation."
If popular support for free speech continues to erode, it's difficult to see how legal protections survive for long without foundations in the wider society. A culture of free speech can't prevail if the culture comes to prefer censorship. Eventually, people who've come to believe it's better to challenge "bad" ideas not with other ideas but with a muzzle will erase or reinterpret protections for speech.
Then, government officials with wish lists of expanded powers ready to go will eagerly step in to save the country from "influencers who radicalize people." The influencers will take their communications to underground channels or else adopt the martyr role of dissidents. And officials will try to suppress misinformation from those influencers in favor of misinformation of their own.
The Rattler is a weekly newsletter from J.D. Tuccille. If you care about government overreach and tangible threats to everyday liberty, this is for you.