The most important exchange in Tuesday’s vice presidential debate has been almost entirely ignored by the corporate media. Not surprisingly, that’s because it makes Walz look like an authoritarian and a fool in one fell swoop:
J.D. Vance: The most sacred right under the United States democracy is the First Amendment. You yourself have said there’s no First Amendment right to misinformation. Kamala Harris wants to use …
Tim Walz: …[inaudible] threatening or hate speech …
J.D. Vance: … the power of government and Big Tech to silence people from speaking their minds. That is a threat to democracy that will long outlive this present political moment. I would like Democrats and Republicans to both reject censorship. Let’s persuade one another. Let’s argue about ideas, and then let’s come together afterwards.
Tim Walz: You can’t yell fire in a crowded theater. That’s the test. That’s the Supreme Court test.
J.D. Vance: Tim. Fire in a crowded theater? You guys wanted to kick people off of Facebook for saying that toddlers should not wear masks.
CBS News’ Norah O’Donnell: Senator, the governor does have the floor.
Tim Walz: Sorry.
Ok, let’s unpack what happened here. Walz challenged Vance on Trump’s questioning of the 2020 election results and Jan. 6, and Vance countered by saying that if Walz and his running mate, Kamala Harris, were so concerned about the fate of democracy they wouldn’t be so adamantly pro-censorship. Specifically, Walz has previously said, quite incorrectly from any legal or moral standpoint, that there’s no First Amendment right to “misinformation.”
Walz interjects to, near as I can tell, try and clarify that he was also talking about limiting “threatening” words or “hate speech.” Interestingly, I looked at multiple debate transcriptions, and none of them had this quite audible interjection included — though the first word or two is hard to discern, the part about “threatening or hate speech” is quite clear. In any event, to the extent that Walz is trying to defend himself he’s doing an awful job.
The legal standards for “threatening” speech or incitement might be clearer, but it’s still a fraught issue. As for “hate speech,” he has no idea what he’s talking about. You may not like it, but “hate speech” is absolutely protected speech. The First Amendment is absolutely a right to offend people without legal sanction, even gratuitously. Otherwise, policing speech is just a tool for government oppression. After all, who defines what constitutes “hate speech?” Walz seems to be suggesting he wants to throw people in jail for not using preferred pronouns and the like.
But the coup de grace for sinister ignorance is Walz saying, “You can’t yell fire in a crowded theater. That’s the test. That’s the Supreme Court test.” Now if you know anything about First Amendment issues, the “fire in a crowded theater” line makes civil libertarians break out in hives. Somewhat surprisingly, The Atlantic had a very good article a few years back about the origin of the phrase:
In reality, though, shouting “Fire” in a crowded theater is not a broad First Amendment loophole permitting the regulation of speech. The phrase originated in a case that did not involve yelling or fires or crowds or theaters. Charles T. Schenck, the general secretary of the U.S. Socialist Party, was convicted in a Philadelphia federal court for violating the Espionage Act by printing leaflets that criticized the military draft as unconstitutional.
In a six-paragraph opinion issued on March 3, 1919, Justice Holmes wrote for a unanimous Court that Schenck’s conviction was justified because the leaflets advocated for obstructing military recruiting and therefore constituted a “clear and present danger” during a time of war. “We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights,” Holmes wrote. “But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
The rest of the article is worth reading for the full history, but in short, arresting people for handing out anti-war literature was justified by comparing it to shouting fire in a crowded theater. Which is unconscionable. Holmes himself later did an about-face on his own reasoning a year later, and the Supreme Court decision above was overturned by the court quite definitively by Brandenburg v. Ohio in 1969. “Fire in a crowded theater” was never a reliable “Supreme Court test” as Walz put it, and it’s been totally inoperable as a matter of law since Walz was in kindergarten.
This is not some small matter here. I have no interest in defending what happened on Jan. 6 (though I do think a great many people have been subject to grossly unfair legal penalties for their participation in the riot, and that this has been done out of partisan spite). But Vance is absolutely correct when he says the Democrat Party’s embrace of censorship is far more threatening than anything on Jan. 6.
How do I know this? Well, to start, unlike Jan. 6, censorship has affected far more people and is an ongoing concern. This publication is involved in a lawsuit with The Daily Wire and the state of Texas against the State Department for promoting Big Tech censorship tools. The State Department justifies what they’re doing as part of a frightening attempt to police “misinformation” — which is routinely defined as any news that liberal academics and federal bureaucrats don’t think is politically expedient.
Earlier this week, Rep. Adam Schiff, who knowingly spread lies about President Trump treasonously colluding with Russia to undermine a fairly elected president, sent a letter to tech companies telling them to censor “false, hateful, and violent content” because it is a “threat” to the upcoming election. But who decides what content is false, hateful, or violent here? Adam Schiff is an especially unworthy judge of these matters, but then again, there’s no elected official that should be deciding who gets to say what. And sending letters that attempt to intimidate private companies into preventing Americans from exercising their most fundamental constitutional right … well, perhaps we live in more civil times, but I have an idea of how the Sons of Liberty would have responded to such a politician.
And it’s not just politicians, the First Amendment is also being actively undermined by the people who, in theory, have the biggest stake in protecting it. Our corporate media’s silence is further proof they quietly agree that the censorship of unruly citizens is necessary. After all, if they continue to do things like refuse a vaccine that doesn’t actually prevent transmission of the disease, stubbornly point out the octogenarian the White House has dementia, and won’t vote for who they’re told to — how exactly do they expect journalism’s current business model to succeed?
The fact remains that fewer people are going to read this very article because it’s being actively suppressed by Big Tech right now. Even if I didn’t have the receipts to show that this publication was being intentionally and unconstitutionally singled out for suppression by the feds, just the fact I typed “vaccine” in the preceding paragraph was probably enough to alert The Algorithms such that this article will forever show up on page six of any relevant search results. The writer in me wants to note the twisted irony of an article warning about the obliteration of the First Amendment being actively censored; the citizen in me just understands this as simple tyranny.
Unlike so many of my peers — alas, I think my parents have taken to telling their friends I sell used cars to spare themselves the shame of admitting I’m a journalist — I’m not going to tell you how to vote. But it is entirely fair to say that Tim Walz and his ilk do not understand the First Amendment, and they sure as hell don’t respect it.
And when people like that get in power, we all lose.
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