Is Hate Speech or Misinformation Protected by the First Amendment?

The topic of discussion for this Constitution Monday concerns the First Amendment guarantee of Freedom of Speech. Last week, Elon Musk and Donald Trump had a two-hour long discussion via X Spaces in which they discussed all kinds of information.

Prior to the actual conversation, Musk received a letter from Thierry Breton, European Union (EU) Internal Market Commissioner, a French citizen, and former CEO of France Telecom. Michael Barone (a senior political analyst for the Washington Examiner, resident fellow at the American Enterprise Institute, and longtime co-author of The Almanac of American Politics) discussed the contents of the letter as well as its ramifications.

… The letter purports to remind Musk of the European Union’s Digital Services Act’s requirements of “all proportionate and effective mitigation measures” regarding “detrimental effects on civic discourse and public security.”

In other words, X must censor questions to and answers from an American presidential candidate and keep the EU informed of its censorship procedures.

What must be censored? “The amplification of content that promotes hatred, disorder, incitement to violence, or certain instances of disinformation.” Breton reminds Musk of “formal proceedings … already ongoing against X under the [Digital Services Act].”

Nice little digital company you’ve got there. Wouldn’t want anything to happen to it.

It would surprise America’s Founders not a little that the unelected head of a European multinational organization would feel entitled to demand the words of an American presidential candidate be censored and to be informed of the censorship tribunal’s procedures and decisions.

Some Americans, however, might not be surprised at all. They might think Breton is very much on the right track.

As one example, Barone used Washington Post reporter Cleve Wootson Jr’s question at a White House press briefing. Wootson wanted to know what the White House or Joe Biden was going to do about this “American issue.”

Another example used by Barone was the Team Biden enlisted “social media companies to suppress dissemination of The New York Post’s October 2020 story on Hunter Biden’s laptop.” One of the top players was Antony Blinken, who was then a Biden staff and is now Secretary of State. Blinken “organized the letter signed by 51 former intelligence officials or current CIA consultants charging that the laptop had ‘all the classic earmarks of a Russian intelligence operation.’” After Biden was inaugurated, we now know that Blinken’s letter was disinformation – “But it got him the secretary of state job for four years.”

The public can expect more of the same if Vice President Kamala Harris is elected this fall. “There’s no guarantee to free speech on misinformation or hate speech, and especially around our democracy,” Gov. Tim Walz, D-Minn., Harris’ vice presidential candidate, told MSNBC in 2022.

Liberals tried to excuse Walz on the grounds that he was talking about spreading false information about the dates and procedures of elections, and the First Amendment does not preclude remedies for fraud and libel. But the decision-makers in such cases are supposed to be neutral courts, not partisan officials.

But it is long-settled constitutional law that the First Amendment does indeed prohibit censorship of what partisan officials may believe, sincerely or self-servingly, is hate speech or misinformation. On the contrary, the remedy for bad speech, as Thomas Jefferson advised people more than 200 years ago, is more and better speech.

And no one should be reassured that Walz actually does understand the First Amendment by his campaign cries of “mind your own damn business” directed against, among other things, banning books. But the only reference to banning books in recent political discourse has been the law of Gov. Ron DeSantis, R-Fla., barring sexually explicit books in school libraries from kindergarten to fourth grade.