Democrats are no longer stalwart defenders of the 1st Amendment

By Matthew Gagnon

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

That statement was made by Minnesota Gov. Tim Walz in Tuesday night’s vice presidential debate. Walz was responding to U.S. Sen. J.D. Vance’s accusation that Kamala Harris was interested in using “the power of government and big tech to silence people from speaking their minds.”

Vance was referring to comments Harris has repeatedly made about social media over the years. In a 2019 speech in Detroit, for instance, Harris promised to “direct law enforcement to hold social media platforms accountable for the hate infiltrating their platforms because they have a responsibility to help fight against this threat to democracy.” She continued, “and if you profit off of hate, if you act as a megaphone for misinformation or cyber warfare and don’t police your platforms, we are going to hold you accountable as a community.”

Sadly, Harris is not alone in this sentiment. Former Secretary of State and current “Climate Envoy” John Kerry echoed this perspective at a recent panel discussion at the World Economic Forum. “Our First Amendment stands as a major block to the ability to be able to hammer [disinformation] out of existence,” Kerry said. “What we need is to win the right to govern by hopefully winning enough votes that you’re free to be able to implement change.”

In one sense, Kerry is indeed right. The First Amendment does indeed stand as a block to government power being exercised against citizens saying things it doesn’t like. That includes true statements it finds inconvenient or doesn’t like, as well as misinformation and even outright lies. 

But this is a feature of the First Amendment, not a bug. It may be inconvenient and even troubling that people are allowed to say whatever they want without the fear of being silenced by their government, but the freedom that allows those problems is essential to guard. 

And yet one political ideology seems increasingly comfortable with no longer guarding them. 

It has been remarkable and disappointing to see how quickly the American left has gone from free speech absolutism to advocating for state power being used against speech. A few decades ago, it was the right that was much too comfortable with censorship — usually directed and what it believed to be immoral corruption of the nation’s social fabric — and the left defending virtually any speech that existed. 

When I was younger, this was always difficult for me to deal with as someone with a right-of-center ideology, because I ended up siding with the liberals on speech. It is one of the chief reasons that I developed an identity as a libertarian, rather than a “conservative.” 

Today, things are different. Though conservatives still express far too much comfort with speech restrictions of people they don’t like, I believe the primary antagonists to the First Amendment currently are Democrats. 

Walz, for his part, doesn’t even seem to understand what the First Amendment is, or what the legal standard for restrictions on speech are. 

When a person uses the “yell fire in a crowded theater” trope as an argument for why there are “limits” on free speech, what they are actually doing is simply regurgitating a simplistic conventional wisdom interpretation that they likely heard in high school.

The “fire in a theater” line comes from Oliver Wendell Holmes in the 1919 Supreme Court case Schenck v. United States. Today it is an anecdote that people repeat, completely unaware of the fact that it is not the legal standard for restricting speech.

Holmes was using the phrase to illustrate a point about speech that presents a “clear and present danger” during wartime, which is what Schenck was about. The statement was never a legal standard, it was just an analogy. More importantly, the ruling was later superseded.

The current legal test for limiting speech is from Brandenburg v. Ohio. The standard established in Brandenburg is that speech is protected unless it is intended to incite “imminent lawless action” and is likely to produce such an action. The “imminent lawless action” test is much narrower than Holmes’ analogy, and it protects most forms of speech that do not directly incite violence or unlawful activity.

In other words: Yes, you can yell fire in a theater. It only becomes illegal if it directly incites violence.

You would think Walz, a former social studies teacher, would know that. Maybe he and the rest of his progressive friends should refresh their study of the legal aspects of the First Amendment. More importantly, maybe they should reacquaint themselves for why restrictions are so dangerous.

Gagnon of Yarmouth is the chief executive officer of the Maine Policy Institute, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.