Senator Dick Durbin Doesn't Understand the First Amendment

On Tuesday, the senator erroneously claimed that "free speech does not include spreading misinformation."

This week, yet another politician appeared to get the First Amendment woefully wrong—this time Senate majority whip Sen. Dick Durbin (D–Ill.).

On Tuesday, Sen. Durbin took to Twitter to complain about Elon Musk's recent takeover of the site, writing, "In the days since Musk took Twitter private, the platform has seen an uptick in hate speech, and Musk himself used the platform and his influence to spread a baseless conspiracy theory about a violent attack on an elected official's family member." Durbin continued, "free speech does not include spreading misinformation to downplay political violence."

Concerns about Musk's handling of Twitter aside, it is simply untrue—presuming that Durbin refers to "free speech" protections as they exist in the United States—that so-called "misinformation" is unprotected speech. As much as Durbin may dislike hateful speech or speech that spreads conspiracy theories, they are both generally protected by the First Amendment.

Durbin's complaints arose from his apparent dissatisfaction with the state of Twitter under newfound owner Elon Musk's control. Durbin began by writing that, under Musk's tutelage, "hate speech" sharply increased on the website. Durbin is correct at least on this count as according to Montclair State University researchers, the site experienced a 500 percent increase in tweets using "hate terms" in the hours after Musk's takeover.

Durbin also took aim at a tweet sent by Musk himself. Following what seemed like a politically motivated home invasion of Speaker of the House Nancy Pelosi's San Francisco home, leaving her husband "gravely" injured, Hillary Clinton sent a tweet castigating Republicans for "hate and deranged conspiracy theories," which she implied motivated the attacker. Musk responded in a now-deleted tweet, writing "There is a tiny possibility there might be more to this story than meets the eye," linking to a story in the Santa Monica Observer which claims that Pelosi was drunk and in a dispute with a male prostitute. The site, according to the Los Angeles Times, "masquerades" as a legitimate local news organization, and is "notorious for publishing false news." For example, the site claimed in 2016, "that Hillary Clinton had died and that a body double had been sent to debate Donald Trump."

While Durbin had plenty of reason to be troubled by these developments—the mass-tweeting of hateful language is concerning, and so too is such a powerful figure seemingly fooled by an online hoax—he was mistaken when asserting that Musk's tweet was somehow not covered "by free speech."

And while Durbin did use vague language when he wrote that "free speech does not include spreading misinformation to downplay political violence," it is fair to assume that Durbin was referring to speech that is protected under the First Amendment, as calling certain speech "free speech" is a common way to claim that it is legally protected.

However, while Durbin might find Musk's tweet offensive, "misinformation" is generally protected by the First Amendment.

"Unless speech—including speech labeled 'misinformation'—meets the precise legal definitions of one of the categorical exceptions to the First Amendment, it's protected," Will Creeley, the Legal Director at the Foundation for Individual Rights and Expression (FIRE), tells Reason. "While commercial fraud and defamation, for example, are unprotected, there's no general 'misinformation' exception to the First Amendment. Musk's tweet would be protected by the First Amendment."

It is a troubling sign when politicians seem eager to label speech they dislike as not "free speech." For one, it indicates a flawed legal understanding of the First Amendment—something particularly worrying from a top-ranked politician and the Chair of the Senate Judiciary Committee. However, Durbin's statements also reveal a deeper problem than a mere legal misunderstanding: A censorious impulse, and the desire to quash the speech of your enemies under nebulous accusations of harm.

"Politicians and celebrities routinely misconstrue the First Amendment out of political expediency, self-interest, or simple lack of knowledge. It's less of a trend and more of a standard background buzz in our political ambiance," Creeley tells Reason.

The First Amendment provides wide protection for a whole host of unpopular, inflammatory speech—one of its least loved, but most powerful characteristics. Further, Durbin's recent statements reveal an ugly authoritarian streak—one that responds to distasteful speech with the desire to legally punish the speaker, not mount a rhetorical opposition of your own.