Tim Walz Was Dead Wrong About Misinformation and Free Speech

Kamala Harris' veep should learn something about the First Amendment.

Now that Minnesota Democratic Gov. Tim Walz has become Vice President Kamala Harris' running mate, it is ostensibly time for the media to scrutinize his record and past statements. (Emphasis on ostensibly.)

To say the mainstream coverage of Walz has been fawning thus far would be quite an understatement; The New York Times described him as "a one-man rejoinder to the idea that the Democrats are the party of the cultural and coastal elite." The Atlantic's Charlie Warzel merrily aided media efforts to portray Walz as a lovable, folksy paternal figure, writing that "dad is on the ballot." CNN proclaimed the Harris-Walz team as "an antidote to Trump's American carnage."

"Kamala Harris and Tim Walz want to make America joyful again," wrote CNN's Stephen Collinson.

The task of scrutinizing Walz will clearly fall to other interested parties. (See Reason's Eric Boehm on his overall record, and this piece by me on his COVID-19 policies.)

Conservatives on social media did manage to dig up an old clip of Walz making an alarming and false claim: "There's no guarantee to free speech on misinformation or hate speech, and especially around our democracy."

Walz is wrong, of course: The First Amendment, which vigorously protects Americans' free speech rights, does not distinguish between good information and misinformation. Moreover, so-called hate speech—an arbitrary category, as different people find different sorts of speech to be hateful—is quite obviously protected.

But that clip of Walz is only eight seconds long, and I am wary of taking people out of context. So I looked for the rest of the clip, which is available here.

Here is a rough transcript of Walz's response to a question from MSNBC about trying to trick people into not voting, or voting incorrectly.

"Years ago, it was the little things: telling people to vote the day after the election, and we kind of brushed them off. Now, we know it's intimidation at the ballot box. It's undermining the idea that mail-in ballots aren't legal. 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. Watching some states continue to weaken the protections around the ballot I think is what's inspiring us to lean into this. Again, all we're asking is to make it as easy and simple as possible to exercise their right to vote and participate in our democracy. I'm in 100 percent agreement with you. That makes it so that more people are there, you get more opinions brought in, and I think it tempers [those] extremes that we get. Again, I can't imagine someone going and standing in line for eight hours to try and vote and then being told that maybe the votes didn't count or maybe something's wrong. You have these candidates who lose and are on these ridiculous court cases that they keep bringing up and losing on."

Suffice it to say, the surrounding context does not greatly improve the accuracy of Walz's remark.

 

Dad Joke

It's unfortunately true that false statements about the time, place, and manner of voting in U.S. elections are occasionally criminalized. For instance, the Justice Department prosecuted a man, Douglass Mackey, for making jokes online encouraging Democrats to vote over the phone. The authorities cited an obscure law from 1870 aimed at preventing the Ku Klux Klan from threatening black voters away from the polls. The Volokh Conspiracy's Eugene Volokh was disturbed by the government's actions, and wrote that the authorities were entering murky territory.

If Walz had said that deliberately misinforming specific people about how and when to vote can be considered a criminal action under certain circumstances, he would have been on solid ground. But he was obviously making a much more general claim about spreading so-called election-related misinformation. Lumping in hate speech only weakens his claim even further: The Supreme Court has held that labeling speech as hateful does not render it unsayable. Indeed, the First Amendment is specifically designed to protect speech in the event that government authorities attempt to suppress it on such grounds. As Justice Samuel Alito wrote in his opinion on behalf of a unanimous Court in the 2017 case of Matal v. Tam: "Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'"

Walz is hardly the first political figure to make this mistake; high-level government and media actors who ought to know better frequently suggest that bad, wrong, and hateful speech is illegal. But his invocation of the dreaded specter of misinformation is especially concerning, given the current moral panic around the concept. As I've previously explained, an ever-expanding web of academic departments, quasi-governmental organizations, media watchdog groups, and publicly funded nonprofits have made it their business to police so-called misinformation on social media. Federal bureaucrats have encouraged content moderators to suppress speech—including jokes about elections. Government authorities frequently act as if they have the power to compel Americans to stop saying contrarian and satirical things about a range of political topics; sadly, they have often gotten away with it.

This is why Walz's misunderstanding about misinformation is important. With the Supreme Court having declined to prohibit federal agencies from jawboning social media companies, the next administration will have a relatively free hand to escalate the government's pressure campaign on disinformation. It's not an encouraging sign that the would-be Democratic vice president is fundamentally mistaken on a vital tenet of the country's free speech tradition. Maybe dad should learn something about the First Amendment?

 

This Week on Free Media

I'm joined by Amber Duke to discuss the media's love affair with Walz, a prospective Harris presidency crashing the economy, and Justice Neil Gorsuch's interview with CBS.

 

Worth Watching

House of the Dragon wrapped up its second season, and I confess myself…disappointed.

To be sure, the acting, writing, and world building are all top-notch. The show mercifully avoids the most vexing problems of late-stage Game of Thrones, in which the characters ceased taking actions that made sense at all. Nobody in HotD behaves contrary to their fundamental nature: The Greens and the Blacks are all busy scheming to thwart each other's designs on the throne, and the conflict never felt contrived or implausible.

That said, there just wasn't enough action. Scenes of various advisers counseling their respective monarchs on the minutiae of running the kingdom have always been among the strongest that both series had to offer, but there's simply too many of them—and not enough forward plot advancement. Prince Daemon's fever dream at Harrenhal is entertaining, and has some payoff, but the writers erred in stretching it out over five episodes. Similarly, Rhaenyra's attempts to recruit new dragon riders was one of the better arcs of the season, but by the time it was accomplished—in very satisfying fashion—we had already reached the end.

The finale's ending montage, in which various armies, fleets, and dragons are seen marching off to battle—a battle that won't be glimpsed for another two years—caused considerable groaning at the watch party I attended. We all felt cheated.