Neither Harris nor Trump is a friend of free speech

During last week’s vice presidential debate, the Democratic candidate, Minnesota Gov. Tim Walz, asked his Republican opponent, Sen. JD Vance (R-Ohio), whether then-President Donald Trump lost his 2020 bid for reelection. Because Vance did not want to choose between contradicting reality and contradicting his running mate, he dodged that question, instead posing one of his own: “Did Kamala Harris censor Americans from speaking their mind in the wake of the 2020 COVID situation?”

Although that pivot was puzzling, it rescued Vance from an uncomfortable situation while highlighting the vice president’s disregard for freedom of speech and Walz’s alarming misconceptions about the First Amendment. Yet Vance himself seems confused about the constraints imposed by that constitutional guarantee, and so does Trump.

Vance was referring to the Biden administration’s persistent pressure on social media platforms to suppress content that federal officials viewed as dangerous to public health. But even before the pandemic, Harris showed she was no friend to freedom of speech.

“We will hold social media platforms accountable for the hate infiltrating their platforms, because they have a responsibility to help fight against this threat to our democracy,” Harris, then a senator, said while seeking the Democratic presidential nomination in 2019. “If you profit off of hate, if you act as a megaphone for misinformation or cyber warfare, if you don’t police your platforms, we are going to hold you accountable.”

Like Harris, Walz thinks the First Amendment is no barrier to government censorship of “hate speech” or “misinformation,” as he made clear in a 2022 MSNBC interview. When Vance alluded to those comments during the debate, Walz doubled down.

“You can’t yell ‘fire’ in a crowded theater,” Walz declared. “That’s the Supreme Court test.”

That misbegotten, misleading and much-abused analogy, which comes from a 1919 case in which the justices unanimously upheld the Espionage Act convictions of two Socialist Party leaders who had distributed antidraft flyers during World War I, is not now and never has been “the Supreme Court test.” The court in that case applied the “clear and present danger” test, which it repudiated half a century later in favor of a standard that makes it much harder to punish people for controversial speech.

The latter case, which involved racist and antisemitic remarks by a Ku Klux Klan leader, also shows that Harris and Walz are flatly wrong in asserting a “hate speech” exception to the First Amendment. As the Supreme Court has repeatedly held, bigots have a constitutional right to express their views, no matter how hateful or offensive.

The idea that “misinformation” is not covered by the First Amendment is equally misguided. Outside of limited contexts such as defamation and commercial fraud, even outright lies are constitutionally protected, and an exception for the much broader and highly contested category of “misinformation” would be an open-ended license to censor speech that government officials do not like.

Although Vance rightly rebuked Harris and Walz for these positions, that does not mean he is a reliable defender of free speech. A few years ago, he suggested the government should “seize the assets of the Ford Foundation” because he disagrees with the academics and causes that organization supports.

Trump likewise champions freedom of speech for himself and his allies while attacking it when it protects his critics and political opponents. If Trump had his way, flag burners would be jailed, purveyors of “fake news” would lose their broadcast licenses, and news outlets would have to pay him damages when their coverage strikes him as unfair.

Only “stupid people,” Trump averred in July, think flag burning is a form of constitutionally protected expression, as the Supreme Court has twice ruled. Those “stupid people” include the late Justice Antonin Scalia, whom Trump described as “a great judge” and the model for his Supreme Court appointments.

These illiberal tendencies are disheartening but not surprising. If politicians consistently respected freedom of speech, we would not need the First Amendment.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @jacobsullum.