Fight To Keep Right Of Free Speech In America So Far Is Split Decision | Mary Katharine Ham

Free speech won a quiet but important victory this week in California, of all places. 

In the wake of the Covid pandemic, which had the effect of normalizing all kinds of authoritarianism in the name of safety, the people who enjoy such power were busy codifying ways to keep it. In California, that meant passing a medical disinformation law in 2022, which allowed professional licensing boards to punish doctors for saying anything on Covid-19 deemed “misinformation or disinformation” by the government.

Gov. Gavin Newsom called this law “narrowly tailored” when he signed it despite its text declaring “‘misinformation’ means false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” There are obvious problems with this, for both speech and patient care. Its vagueness chills free exchanges between caregivers and patients, neither of whom can know what is impermissible. It also doesn’t allow for the standard of care to change quickly outside the “scientific consensus” the government recognizes, thus locking the citizenry into an incomplete conversation that often dismisses good ideas in favor of government-approved ones, which is viewpoint discrimination. I think we’ve seen how that approach has been going for the last three years.

Gavin Newsom, governor of California, in the spin room following the Republican primary presidential debate hosted by Fox Business Network in Simi Valley, California, US, on Wednesday, Sept. 27, 2023. The auto workers strike, the looming government shutdown and a renewed focus on abortion rights all set the backdrop for the second Republican primary debate today. Photographer: Eric Thayer/Bloomberg via Getty Images

This law is now gone. It had already been blocked in January by a judge who recognized, “COVID-19 is a quickly evolving area of science that in many aspects eludes consensus.”Apparently, the California legislature saw the writing on the wall, and the likelihood of a court loss, and inserted language into another bill repealing AB2098 less than a year after it was passed. 

Admission Of Failure

Their admission of failure is due in large part to lawsuits filed against the law. A group of five doctors—among them prominent Covid-era critics of public-health diktats, Drs. Tracy Hoeg, Aaron Kheriaty, and Azadeh Khatibi— represented by the New Civil Liberties Alliance were poised to make their argument this fall.

“I suspect they knew they were in for further humiliation in court,” said Jenin Younes, litigation counsel at NCLA.

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Meanwhile, the First Amendment has won at a federal level twice now against the Biden Administration’s arguments that it has the right to bully social-media companies into censoring the speech of American citizens that doesn’t conform to its approved narrative. 

According to the Fifth Circuit, the administration and other federal agencies “engaged in a years-long pressure campaign on social media outlets designed to ensure that the censorship aligned with the government’s preferred viewpoints.” 

The administration went to the Supreme Court to request “the White House, FBI and key public health agencies” not be restricted “from efforts to ‘coerce or significantly encourage’ social media companies to remove or suppress posts.” SCOTUS stayed the injunction on government communications and we must wait to see how the case plays out in that venue.

When free speech is challenged in the court, it is winning key victories lately. But when it’s challenged in the culture, it’s a different story.

Outside of court, President Biden spoke to John Harwood for ProPublica, bemoaning a lack of control over changing media landscapes, which Harwood suggested “drive a threat” to democracy.

Biden Is Stuck In Fantasy Land

"Look, they’re no editors anymore,” Biden said. “That’s one of the big problems. There’s nobody telling…” Biden trailed off, no doubt fantasizing about all the ways his administration has been telling people what to write that he must now defend at the Supreme Court.

President Joe Biden. (Ting Shen/Bloomberg via Getty Images)

Former President Trump took the rhetoric a few steps further on Truth Social, promising to punish news networks for treason.

“Comcast, with its one-side and vicious coverage by NBC NEWS, and in particular MSNBC, often and correctly referred to as MSDNC (Democrat National Committee!),” he wrote. “Should be investigated for its ‘Country Threatening Treason.”

Both comments suggest a poor understanding of the First Amendment and its great benefits to this country, and the powers afforded an American executive.

But they’re not the only ones with a poor understanding. Recent polling by Real Clear Politics on the subject has turned up some shocking numbers.

Free Speech Fight Is Being Lost

The First Amendment enjoys hearty support as a concept, overall, particularly among Republicans and Independents. But fully 75 percent of Democrats believe “government has a responsibility to limit ‘hateful’ social media posts.” Almost half of them say speech should be legal “only under certain circumstances.” Beyond a partisan divide is a generational divide that worries Younes, despite legal victories.

“The reality is it’s a problem because people become judges, and I worry about the younger generation,” she said. 

Respondents under 30 were most open to censorship in the poll, with more than 40% saying it’s “'more important’ to them that the government protect national security than guard the right to free expression.”

“You need a culture that understands why we have a First Amendment and why free speech more broadly is important, and I don’t think we have that at all anymore,” Younes said.

Victories at court are important, but free speech needs defense in the streets, too. It's a street fight we're unfortunately losing at the moment.