Free Speech, Censorship, and the Fight Against Misinformation
Columbia University faculty at a rally on Monday against federal funding cuts. The university last month agreed to major concessions that the federal administration demanded. Photo by Graham Dickie / The New York Times
By Scott Brooks
The Integrity Project
The First Amendment is first for a reason, and James Madison, chief author of the Bill of Rights, was a staunch supporter of the values enshrined therein: Speech, Religious Liberty, Freedom of the Press, Free Assembly, and the Freedom to Petition for Redress of Grievances.
Unlike in the time of Madison, communication now proceeds at the speed of light, with 2.5 quintillion bytes (402.74 million terabytes) of data created worldwide daily. With so much of that representing speech, and as a right considered sacred to our Founding Fathers, underpinning the values we fought and have continued to fight for of liberty and freedom, it is vital and indeed our duty to truly understand the scope of free speech; when it applies and when it does not, and why it is important to protect it even in the face of real threats like hate, violence, and misinformation.
The 1st Amendment and Its Scope
What does it mean that “Congress shall make no law […] abridging the freedom of speech”? It means the federal government is restricted in most cases from censoring speech, protecting a citizen’s ability to: criticize the government, share unpopular or even hateful opinions, use offensive language, create pornography, or even through symbolic acts like burning the American flag.
The government is only able to step in and restrict speech in a narrow set of circumstances: obscenity, child pornography, defamatory speech, fraud, speech integral to criminal conduct, true threats, incitement, and fighting words. The reason that these restrictions are such a narrow list is because, as former Supreme Court Justice Louis Brandeis said, resolving differences requires “more speech, not enforced silence.”
There is also the very real concern that to legally restrict ideas is to criminalize thought, which is a sliding scale with too many cultural, historical, regional, and other factors at play. This has had real-world repercussions at times in history when free thinking was a death sentence: Socrates for the corruption of youth by teaching such blasphemy as “critical thinking” to his students; Galileo dying under house arrest for daring to advocate for the notion the Earth revolves around the Sun (it does); even dissidents under the Soviet Union (and some would argue under the current regime in the Russian Federation) and China for the opposition of their respective Communist Party’s severe limits on not only speech but a free press.
When a government restricts ideas, it typically leads to other oppressive and repressive actions. In the U.S., the government is far less able to moderate speech; but what about private companies like social media platforms?
Private Entities and Censorship
The media has been replete with recent stories of elected officials accusing social media platforms of censorship and infringing the right to free speech through moderation efforts—including the deletion of hateful content and misinformation, as well as the suspension of users who engage in producing content that violates their terms of service. Are these officials right? Are platforms engaging in a violation of the First Amendment?
The key is in the phrase in the text itself, “Congress shall make no law…”. Congress cannot make a law that infringes on speech. A common misconception today in understanding the principle of free speech is an assumption all forms of censorship, including actions by private companies, are a violation. Contrary to popular belief, however, private businesses, individuals, and yes even social media platforms, are not bound by the 1st Amendment like the government is.
As a result, private universities, stores, and other businesses can legally restrict speech on their premises. Social media platforms have a broad mandate to moderate their forums as they wish (under Section 230 of the Communications Decency Act of 1996). Ironically, spaces we usually associate with broad free speech protections like a public park, street corner, or other such forums, can themselves be regulated for speech, with restrictions on things like the time, place, or manner of speech (protest, etc.).
This can often lead to misunderstandings by those who are not familiar with the many nuances of free speech law and regulation, which can result in actions such as being removed from private property and even arrested for engaging in what they believe is a protected First Amendment activity like protesting or demonstrating. With this being a common misconception, it begs the question: what others exist that make navigating free speech such a daunting and often confusing endeavor?
Incorrect or Misleading Assumptions
During the 2024 Vice-Presidential debate, the Democratic challenger commented on censorship declaring, “You can’t yell fire in a crowded theatre!”. This is a phrase that has become commonplace when people discuss the limits of censorship. The problem is, it is incorrect—and has been since 1969.
That is when Brandenburg v. Ohio was decided, a Supreme Court case that threw out the “fire in a crowded theatre” standard from the precedent-setting Schenck v. United States which had stood for the previous 60 years. Under Brandenburg, a much stricter test was created whereby the government can only limit speech if it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action”.
In this way, while many believe incorrectly that hate speech is heavily regulated in the U.S., hate speech is broadly protected under the 1st Amendment. Unless it directly incites violence or “imminent lawless action”, cases like Brandenburg reaffirmed that the government cannot restrict speech because it is hateful or offensive. A concept might be offensive or hurtful to some, but that does not mean it is the government’s role to step in and shield the public from opinions they find disagreeable, inappropriate, or uncomfortable.
Freedom of Speech Does Not Mean Freedom From Consequences
People understandably do not like to feel uncomfortable, they do not like to feel hated, and they do not like to be lied to. Since it is not the government’s role to step in to shelter against these things, however, is there no recourse?
That is the wonderful thing about the freedom of speech; it cuts both ways. If someone is hateful or hurtful in their speech, you as an American citizen have the right to speak in response. Social ostracization, public backlash, and employment repercussions are all very real consequences of speech that is void of compassion, understanding, or integrity. In fact, the court of public opinion is usually more damning and more immediate in meting out punishment than a court of law.
Lost in so often in the discussions around free speech is that this freedom must necessarily be balanced by personal responsibility and compassion. Just because you legally are protected from saying something does not mean you necessarily should. We teach these as fundamental principles to our children— “it’s not what you say, it’s how you say it”; “think before you speak”; “treat others how you wish to be treated”. This basic cognizance of responsibility is crucial when discussing hate speech, but it is equally as critical in a discussion about misinformation.
Misinformation
Is misinformation, broadly speaking, considered protected speech? Yes, it is. Unless and until misinformation causes an imminent danger (and there is a very important discussion going on right now in academic and political circles about where that line should be drawn), it is protected speech.
What is characterized as misinformation can, of course, be dependent on who has influence and their potential motivations. As mentioned before, the powers that be in the time of Galileo essentially accused him of spreading misinformation in challenging the Catholic Church’s accepted universal model of geocentricity, branding him a heretic. In the case of Galileo, his work was based on empirical data and observations made over many years, building on the work of Copernicus before him. History and science eventually exonerated Galileo.
But, how do we teach people to separate the “Galileos”, voices in the wilderness taking on the status quo in the defense of reason, from the hucksters? And let’s be clear: there have always been hucksters. This is of course challenging and why combatting potentially dangerous misinformation can be so pernicious— it requires training a populace to understand how to think critically, to reason objectively, and to communicate rationally and compassionately without concern for who is right and who is wrong, but what is empirically true and false.
Where Does That Leave Us?
The freedom to speak your mind and relay an idea to another, to society, is fundamental to us in America. Even in the 21st century, many countries do not allow a fraction of the speech allowed in the United States, and we should feel grateful we can have this discussion to begin with.
Free speech should not only be seen as a human right, but also a privilege that requires responsibility, integrity, respect, and even compassion. In a world where information travels at the speed of light and software algorithms amplify exposure and impact, a balance must be struck by what we say and how we say it, and that judgment begins with an exchange between the brain and mouth of the individual and not with the government.
Driven by human impulses often grounded in self-interest, many ignore this most basic of responsibilities. Addressing the problems of today through rational discourse as opposed to increasingly charged and amplified rhetoric laced with deception then becomes impossible. If we cannot agree to use a factual foundation for discourse, it resigns us to fighting wars of our own making where deceit is seemingly acceptable in exploiting the vulnerabilities of our neighbors. As Americans, we simply cannot accept this as the status quo.
Scott Brooks is the Executive Director of The Integrity Project. Contact Scott at scottbrooks@tipaz.org.
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