How Free is Free Speech?

The first amendment is supposed to protect citizens from its government. But who is it really protecting?

Jonathan Perez

article

6 minute read

Man's speech being restricted

Blanket Protection?

The First Amendment is quite clear: the government cannot do anything to restrict our free speech. Or is it clear? Edward Snowden leaked thousands of NSA documents, and was charged with several counts of espionage. He’d face decades in prison. These documents showed our own government acting inappropriately towards us, so shouldn’t the First Amendment protect Snowden by allowing him to speak out against this? “No,” we are told, because included in this leak was information that put our intelligence operatives at risk.

I’m not going to debate whether that’s right or not, but at least it makes some sense. It might be protected under the first amendment if the documents only showed our government acting inappropriately. Including documents that may put lives at risk is not okay, even if the ultimate goal was to protect the American people. But wait, Trump leaked information that put our ally’s intelligence operatives at risk, without any underlying goals1. It was just a leak. But he is in the most powerful position in our country, and it is up to him what information is okay or not okay to share.

Okay, that makes a bit of sense. The President should have the power disclose whatever information he deems necessary, and this is just an instance of that power being used irresponsibly. It is irresponsible to let him get away with it though, since it establishes a precedent for being above the law. So it seems like the First Amendment, which is supposed to protect our freedom of speech from the government, does not protect citizens who give out classified information that puts our intelligence operatives at risk. Unless you’re the President. Or it’s our ally’s operatives, and not ours. Got it.

Fraud

What else doesn’t it protect us from? Fraud, right? Companies are not allowed to knowingly lie to their customers for their own personal gain. Its definition specifies “criminal deception”, whatever that means. But this makes sense. I cannot sell you snake oil and tell you that it’ll cure your appendicitis, and it’s pretty clear that if I make off with money and you die that I deserve to go to prison. It also makes sense that entrepreneurs that lie about their product to investors and run away with the money deserve jail time. So lying for personal gain is not protected by the First Amendment.

Or is it? Smear campaigns are common in politics. So is propaganda. Both of these involve twisting the truth (i.e. lying) to make a person or policy seem more favorable or unfavorable, depending on the desires (i.e. personal gain) of whoever’s funding the campaign. Surely one would think that the First Amendment would not protect this. But, of course, I would not be writing this if it did not.

Super PACs

Companies and individuals are allowed to make unlimited donations to organizations called Super PACs (Political Action Committees). These committees exist for the sole purpose of raising and spending money to elect (or defeat) political candidates2. This money can’t be given to the campaign itself, and so ultimately is used to advocate for candidates they support, and slander candidates they’re against.

It would be unfair to say that all the money Super PACs spend to oppose a candidate is slander, but to call it uncommon would also be untrue. The reason for this is due to how difficult it is to combat campaign-related slander3. Because the slander is related to the campaign, suing for libel is also considered campaign-related. This means that any funds used to pay for the legal fees of such a lawsuit are subject to campaign funding restrictions4, even though the Super PAC slandering them is not.

The truth is twisted in such a way that it is not technically false. For example, during a local election in New Jersey, a Super PAC ran an ad claiming that the Republican incumbent raised taxes5. This was technically true: taxes went up by $40,000 in his first year. It was also patently false: taxes went down by around $900,000 during his tenure.

This essentially embodies what political slander consists of: a grain of truth inside of a blatant lie. These tactics are used to get voters to elect officials they might not actually want, and also to support legislation they might not want as well.

Twisting the Truth

How bad can this get? Remember the DHMO hoax6? There were several instances of a prank calling dihydrogen monoxide (DHMO) a harmful substance that can cause burns when in gaseous form, death when inhaled, and those dependent on the substance cannot completely withdraw from it without dying. All those statements are true, but DHMO is just the scientific term for water (two hydrogens, one oxygen, H2O). Students signed a petition to ban the substance. Restaurants tried to make food without using water when they found out DHMO was in the pipes. A California municipality got so far as to schedule a vote on legislation to ban foam containers from city-sponsored events due to being made with DHMO. The careful omission of key facts can convince people to vote to ban water (or items made using water). Imagine what’s being done with partisan legislation.

This has nothing to do with intelligence. People cannot be expected to know everything about what they vote on, and rely on the explanations on the subject to be open and honest. It has to do with the explanations themselves. The latest tax bill will result in either a reduction in funding for social welfare programs, or a massive increase of our national debt. This is in exchange for some tax relief for the middle class and an absurdly large tax reduction for corporations and the wealthy. It should not be allowed to be touted as a “tax cut for the middle class”. A surveillance bill that allows the government to spy on citizens without a warrant should not be touted as anti-terrorism legislation. Doing so is patently dishonest. Explanations should clearly detail the effects of such legislation without being misleading.

Solutions

Legislation limiting political speech, however, is dangerous. Done the wrong way, media outlets could suffer from exploitative lawsuits. Those are already bad enough7.

There is, however, one simple solution that would allow us to define limitations on political speech without endangering the press: pass a law that puts politicians and political candidates under oath whenever they write or speak to the public. Even though it would still be hard to prove a lie, the risk of a felony conviction would deter much of the lying that occurs in politics today.

Feel strongly about this? Sign the petition, and contact your representatives below!

Citations

1: Hensch, Mark. “Israeli Intelligence ‘Boiling Mad’ over Trump Disclosure: Report.” TheHill, 16 May 2017, http://thehill.com/homenews/administration/333670-israeli-intelligence-boiling-mad-at-trump-report.
Cached: http://web.archive.org/web/20180211194023oe_/http://thehill.com/homenews/administration/333670-israeli-intelligence-boiling-mad-at-trump-report

2: “The Center for Responsive Politics.” OpenSecrets.org, https://www.opensecrets.org/pacs/superpacs.php.
Cached: http://web.archive.org/web/20180211194650/https://www.opensecrets.org/pacs/superpacs.php

3: Jackson, Brooks. “Suing Over False Political Advertising.” FactCheck.org, 27 July 2010, https://www.factcheck.org/2008/02/suing-over-false-political-advertising/.
Cached: http://web.archive.org/web/20180211194931/https://www.factcheck.org/2008/02/suing-over-false-political-advertising/

4: Bauer, Bob. “Lying in Campaigns-and the Functions of Super PACs.” More Soft Money Hard Law, 10 June 2013, http://www.moresoftmoneyhardlaw.com/2013/06/lying-campaigns-super-pacs/.
Cached: http://web.archive.org/web/20180211195426/http://www.moresoftmoneyhardlaw.com/2013/06/lying-campaigns-super-pacs/

5: DeRosier, John. “Local Republicans Claim Super PAC Ad Slanders Assembly Candidate.” Press of Atlantic City, 8 Oct. 2017, http://www.pressofatlanticcity.com/news/local-republicans-claim-super-pac-ad-slanders-assembly-candidate/article_edd2491e-ced0-5eb8-b027-831279322835.html.
Cached: http://web.archive.org/web/20180211195721/http://www.pressofatlanticcity.com/news/local-republicans-claim-super-pac-ad-slanders-assembly-candidate/article_edd2491e-ced0-5eb8-b027-831279322835.html

6: Mikkelson, David. “Is Dihydrogen Monoxide Dangerous?” Snopes.com, 13 Sept. 2007, https://www.snopes.com/science/dhmo.asp.
Cached: N/A

7: Jeffery, Clara, and Monika Bauerlein. “A Billionaire Political Donor Sued Mother Jones. We Won. Here’s What Happened.” Mother Jones, 8 Oct. 2015, https://www.motherjones.com/media/2015/10/mother-jones-vandersloot-melaleuca-lawsuit/.
Cached: http://web.archive.org/web/20180211200326/https://www.motherjones.com/media/2015/10/mother-jones-vandersloot-melaleuca-lawsuit/

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