About Fires in Crowded Theaters and Empty-Headed Candidates for National Office

"VANCE: You yourself have said there’s no First Amendment right to misinformation. Kamala Harris wants to use…

WALZ: Or threatening. Or hate speech.

VANCE: …the power of the government to use Big Tech to silence people from speaking their minds. That is a threat to democracy that will long outlive this political moment… Let’s persuade one another. Let’s argue about ideas and come together afterwards.

WALZ: You can’t yell “Fire!” in a crowded theater. That’s the test. That’s the Supreme Court test!"

Walz is almost completely wrong. He has no working knowledge of one of our nation's most important principles. His wanna-be boss Harris is equally ignorant. Despite his recent rhetoric, Trump falls far short too. The fact that the two major political parties are floating candidates of this caliber is proof of a failed legal system.

Matt Taibbi explains the First Amendment test here:

The “You can’t yell ‘Fire!’ in a crowded theater” saw is not only wrong, it’s the most overused anti-speech argument of our era, surpassing even the Karl Popper “Paradox of Tolerance” cartoon that was once meme legend. In 2012, the ACLU’s Gabe Rothman wrote that the “Fire!” bit was “worse than useless in defining the boundaries of constitutional speech.” Lawyers and civil liberties activists are in danger of self-harm every time it’s mentioned. “My head hits my desk every time the ‘shouting fire’ canard is trotted out. I think I have a permanent bruise on my forehead because of it,” says Nico Perrino of the Foundation of Individual Rights and Expression, who adds the damage might prevent him from knowing how many times it’s happened.

The “Fire” saw is one of those unkillable nuggets of received wisdom blurted out by people with at least three drinks in them, repeated as fact by a Vice Presidential candidate. Why? It feels like Democrats are intentionally fumbling the issue:

“‘Fire!’ in a crowded theater” was never law, nor was it ever a “Supreme Court test,” as Walz insisted. The quote is from Justice Oliver Wendell Holmes, who in a 1919 case called Schenck v. United States argued, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” ...

“‘Fire!’ in a crowded theater” not only isn’t law, it’s a symbol of one of the darkest chapters in our history, when we passed the aforementioned Espionage Act of 1917 and the similarly heinous Sedition Act of 1918, punishing utterance of “disloyal, profane, scurrilous, or abusive language about the form of government of the United States.” This was when Attorney General Mitchell Palmer terrorized Americans with deportations, mass arrests, even torture. “Clear and present danger” cast a shadow over expression for decades. Not until the 1969 Brandenburg v. Ohio, which established the current standard barring incitement to “imminent lawless action,” was America free of the stain of the case.

The fact that Walz thinks that abomination is still law and also hasn’t corrected his belief that “hate speech” isn’t protected is odd. He first coughed up the latter hairball in a December 2022 interview with MSNBC’s Maria Teresa Kumar . . .

Continue ReadingAbout Fires in Crowded Theaters and Empty-Headed Candidates for National Office

Michael Shellenberger Offers Three Questions to Ask Those who Those who “Oppose” Free Speech

What is a good way to get a real conversation going with someone who claims that free speech is a bad thing? Michael Shellenberger offers three questions. His article at Public is titled, "Why These Three Questions Change People's Minds About Censorship." An excerpt:

How you approach the topic will depend on whether you’re talking with a friend or relative or moderating a presidential debate, but it should include affirming shared values. You might say, “There’s been a lot of debate about censorship and misinformation. Most of us, myself included, care a lot about protecting vulnerable people and countering bad information while protecting people’s right to free speech. I’m curious how you think about these issues, and I wondered if I could ask you how you think about them.”

Assuming you get permission to go further, here are the three key questions I would recommend:

First, “Can you think of examples where free speech helped past movements for political independence, civil rights, and human rights succeed?”

This immediately will slow many people down. They’ll be forced to reflect on what they know about those movements. Some will say they don’t know. But it’s unlikely that many people will respond that those movements succeeded thanks to censorship since so few cases exist.

Second, “Can you imagine a future government ever abusing its powers to censor hate speech and misinformation for political reasons?

A recent Australian poll found that voters were evenly split, 37% to 38%, on whether they agreed or disagreed with the question, “Freedom of speech should be protected online, even if this means wrong, inaccurate or false information may be published.”

However, when pollsters asked voters, “How concerned are you that if ‘misinformation’ laws were to be passed, government officials would use these powers for political purposes (for example, to limit public debate and censor certain opinions)?” between 61% and 78% of voters said they were concerned. And it was young people ages 18-24 who said they were most concerned.

The first question required people to think about what they know, and the second asked people to imagine the future. For various reasons, most people do not have a hard time imagining governments abusing their power for political reasons.

Third, “Is the best solution to hate speech and misinformation free speech or censorship?”

Acknowledging that bad guys have used censorship more than good guys throughout history and that future governments might censor for bad reasons, this last question slows people down further to assess the evidence on both sides. People who endorsed censorship a few minutes earlier may have second thoughts and even reversing themselves.

I would add one more question to this list. "If we decide that censorship is OK, who should be in charge of determining what is true?" That often stops people cold, but not always. Two years ago, a law professor (to my dismay) told me that in the case of COVID, the public health officials would get to decide what is true. It didn't seem to bother him that these "experts" got almost everything wrong about COVID. I asked, "What about non-medical issues," and he (I swear he said this) the FBI and CIA should be in charge.

I like Shellenberger's suggested questions. I'm going to start using them in my free speech conversations.

Continue ReadingMichael Shellenberger Offers Three Questions to Ask Those who Those who “Oppose” Free Speech

Matt Taibbi’s Challenge to You

Matt Taibbi gave an extraordinary speech in DC this weekend. I invite everyone to watch his speech or read the transcript.

One of Matt's many quotable lines: "[The use of propaganda is] always someone trying to make you feel bad for their weakness, their mistakes. Don’t be ground down by it. Stand up straight and give it back."

I agree with every word of Tabbi's challenge. We need to speak up often and this includes repeatedly saying "no" to government overreach. When something big monied organizations tell us doesn't make sense, we need to stand up and say so, even when people (including friends and family) tell us we are bad for refusing to belief. Recently, Elites, including John Kerry and Bill Gates have disparaged our founding documents, the ones we purportedly celebrate on Fourth of July. They are now saying out loud that the First Amendment is a problem, rather than a brilliant proven solution to government overreach.

This tyranny and censorship we are facing are invisible to those who lap up their "news" from corporate media. "X" (Twitter) is where you need to go to get better information and alternate perspectives. It's far from perfect because X is a huge tent filled with many types of people, many of them severely wacky. X is also one of the few places where you can find thoughtful people freely conversing with each other, freely challenging the narrative that your government is spending untold millions of $ trying to force-feed you every day. Your own government thinks you aren't smart enough to think for yourself. It's minions talk down to you. They want to be your nanny. They want you get get in line and stop asking questions. They want you to shut the fuck up, even though they got almost EVERYTHING wrong about COVID. You'd think that they would instill some humility, but these are high paid elites who treasure their job security as much as they their conviction that they are so much god-damned smarter than the rest of us. They are close to having the power to intellectually blind and gag us on a scale that would have been unimaginable pre-internet. Truly, we need to stand up every day and say no to this.

Here's a longer excerpt from Taibbi's speech:

Let me pause to say something about America’s current intellectual class, from which the “anti-disinformation” complex comes. By the way: there are no working-class censors, poor censors, hungry censors. The dirty secret of “content moderation” everywhere is that it’s a tiny sliver of the educated rich correcting everyone else. It’s telling people what fork to use, but you can get a degree in it.

America has the most useless aristocrats in history. Even the French dandies marched to the razor by the Jacobins were towering specimens of humanity compared to the Michael Haydens, John Brennans, James Clappers, Mike McFauls and Rick Stengels who make up America’s self-appointed behavior police.

In prerevolutionary France even the most drunken, depraved, debauched libertine had to be prepared to back up an insolent act with a sword duel to the death. Our aristocrats pee themselves at the sight of mean tweets. They have no honor, no belief, no poetry, art, or humor, no patriotism, no loyalty, no dreams, and no accomplishments. They’re simultaneously illiterate and pretentious, which is very hard to pull off.

They have one idea, not even an idea but a sensation: fear. Rightly so, because they snitch each other out at the drop of a hat; they’re afraid of each other, but they’re also terrified of everyone outside their social set and live in near-constant fear of being caught having an original opinion. They believe in the manner of herd animals, who also live whole lives without knowing an anxiety-free minute: they believe things with blinding zeal until 51% change their minds, and then like deer the rest bolt in that direction. We saw that with the Biden is sharp as a tack/No, Biden must step aside for the Politics of Joy switch.

I grew up a liberal Democrat and can’t remember having even most of the same beliefs as my friends. Now, millions of alleged intellectuals claim identical beliefs about vast ranges of issues and this ludicrous mass delusion is the precondition for “disinformation studies,” really the highly unscientific science of punishing deviation from the uniform belief set — what another excommunicated liberal, my friend Thomas Frank, calls the “Utopia of Scolding.”

“Freedom of speech” is a beautiful phrase, strong, optimistic. It has a ring to it. But it’s being replaced in the discourse by “disinformation” and “misinformation,” words that aren’t beautiful but full of the small, pettifogging, bureaucratic anxiety of a familiar American villain: the busybody, the prohibitionist, the Nosey Parker, the snoop.

H.L. Mencken defined Puritanism as the “haunting fear that someone, somewhere is happy.” That streak of our early European settlers unfortunately survives in us and keeps surfacing through moral panics. Four hundred years ago it was witches, then it was Catholic immigrants, then “the devil’s music,” comic books, booze, communists, and now, information.

Because “freedom of speech” is now frequently described as a stalking horse for hate and discrimination — the UN High Commissioner Volker Türk scolded Elon Musk that “free speech is not a free pass” — it’s becoming one of those soon-to-be-extinct terms. Speech is mentioned in “reputable” media only as a possible vector for the informational disease known as misinformation. Soon all that will remain of the issue for most people is a flutter of the nerves, reminding them to avoid thinking about it.

The end game is not controlling speech. They’re already doing that. The endgame is getting us to forget we ever had anything to say . . .

Continue ReadingMatt Taibbi’s Challenge to You

The Silence of the White House While Speech is Being Muzzled World Wide

The silence of the White House is Deafening, too horrible for most Americans to contemplate even though it deeply affects every American.

David Sachs:

"American politicians speak constantly about the indispensable role of the United States in leading the free world against authoritarianism. If that is true, why is the White House so silent in the face of new global threats to free speech? In January, American citizen Gonzalo Lira died in a Ukrainian prison for posting YouTube videos; the State Department didn’t lift a finger to help. Last week, Telegram founder Pavel Durov was arrested in France for the crime of insufficient content moderation. Now Brazil has banned X for resisting the diktats of a tyrannical judge, who salivates over the possibility of jailing @elonmusk.

The EU is one step behind, with Eurocrat Thierry Breton pursuing a criminal investigation against Elon for “platforming disinformation,” which Breton defines to include a conversation with Donald Trump.

In the UK, the government of Keir Starmer imprisons critics of open borders with more zeal than it prosecutes violent crime. In Canada, Justin Trudeau crushed a trucker protest against vaccine mandates by asserting sweeping new powers to freeze bank accounts.

At no point has the White House expressed concern about this new iron curtain that seems to be descending across the West. Quite the contrary, Mark Zuckerberg confirmed that the Biden-Harris administration repeatedly pressured Meta to censor during Covid. Worse, the FBI primed Facebook to censor true stories about Biden Family corruption by suggesting that Hunter Biden’s laptop was Russian disinformation (even though the FBI knew it was authentic).

Barring court intervention, TikTok will shut down in the U.S. on January 19, 2025 thanks to a new power authorized by Congress to ban websites and applications that the President determines are subject to the influence of a foreign adversary. X may not be far behind if liberal elites and deep state apparatchiks like Robert Reich and Alexander Vindman get their wish. They have called for the U.S. to adopt Brazil’s and the EU’s approach and “rein in” Elon Musk.

Hypocritically, the same voices demanding this crackdown are also the loudest in proclaiming the West to be engaged in a “war on authoritarianism” against countries like Russia and China. But whatever their other sins, Russia and China are in no position to deprive American citizens of their free speech rights; only our own government can do that.

Similarly, if Western leaders truly wanted to prevent authoritarianism, the easiest place to start would be at home, protecting the civil liberties of their own citizens. Instead they seem obsessed with deflecting the public’s attention onto foreign enemies, as Orwell depicted in the Two Minutes Hate in 1984.

As this battle over free speech heats up in an election year, where do the candidates stand? Donald Trump has declared his support for free speech whereas Kamala Harris has said nothing and can be expected to continue her administration’s policy of tacit approval of creeping censorship. In just two months, Americans will decide. Do we actually lead the free world in standing up for free speech, or do we accept the authoritarianism we claim to detest so much?"

Continue ReadingThe Silence of the White House While Speech is Being Muzzled World Wide

FIRE’s Position on TikTok Litigation

Excerpt from FIRE's recent Amicus Brief:

Never before has Congress taken the extraordinary step of effectively banning a communications platform, let alone one used by half the country. But this spring, Congress did exactly that when it passed the Protecting Americans from Foreign Adversary Controlled Applications Act. The law not only threatens TikTok’s U.S. operation but also exposes other online platforms to burdensome restrictions, including potential bans, if they have even tenuous connections to certain foreign countries.

TikTok and its users quickly filed lawsuits in the U.S. Court of Appeals for the D.C. Circuit, which the act gives exclusive jurisdiction for challenges to the law. FIRE, joined by the Institute for Justice and the Reason Foundation, filed an amici curiae — “friend of the court” — brief supporting the plaintiffs. We argued the law violates the First Amendment in two ways.

First, it explicitly targets a specific communications platform — and the users who speak and access content on it — for the purpose of silencing opinions and ideas that lawmakers oppose. Such attempts to suppress disfavored views strike at the heart of the First Amendment.

Second, to the extent the law is motivated by national security concerns, Congress has failed to build a public record explaining why such a dramatic restriction of Americans’ right to speak and access information is necessary to address those concerns. (However, the court will not consider the brief for procedural reasons explained in the note following this article.)

Recent development:

Continue ReadingFIRE’s Position on TikTok Litigation