The First Amendment is designed to prevent government from establishing an intellectual orthodoxy. Governments throughout history have attempted to do this, creating official established religions that could not be criticized or banning the profession of certain ideas. James Madison, author of the First Amendment, stood athwart the tide of history and yelled stop. The new democratic republic would, from its onset, be the first government in history to dedicate itself to individual intellectual freedom.
There is no exception to that rule for speech that the government believes is untrue. In the United States, people can say the most ridiculous things in full confidence that the government will not try to silence them.
Biden’s ham-fisted attempts to get the social media giant to remove anti-vaccine speech suggests he simply doesn’t grasp this elemental truth. He is correct that people who believe the falsehoods are harming themselves, perhaps even leading to their deaths. He’s free to promote the opposite viewpoint far and wide, combating false speech with more speech. What he’s not permitted to do is try to shut speech down.
One might argue that Biden is not trying to shut down speech because he is not using government’s coercive power to force Facebook’s compliance, but this is naive. Biden has staffed his administration with people who believe that Facebook and other Big Tech firms are engaging in monopolistic, anticompetitive behavior. They hold the hammer that can force firms such as Facebook to bend to the government’s will. Faced with such power, what firm wouldn’t consider currying favor with the big boss by suppressing speech he doesn’t like in a bid to prevent lawsuits or worse?
Those who think the circumstances demand an exception to the general rule should think again. Public health emergencies arise all the time. Should speech the government thinks untrue or unwise be suppressed whenever it sees fit? And what types of speech could be banned? Would early claims that the coronavirus escaped from a lab in Wuhan, China, have been barred? What about competing claims with respect to the virus’s lethality? A government can provide strong reasons that suppressing speech in an emergency is in the public interest. That doesn’t mean it is, or that the public’s purported interest outweighs the liberty that Americans would lose as a result.
Nor should we think governments that suppress speech once will stop. Biden surely believes that former president Donald Trump and others are lying when they say the 2020 election was stolen. There’s as little evidence to support these claims as there is to support those of anti-vaxxers. And it’s surely clear that such statements weaken public support for our democracy. Why wouldn’t the same standard that applies to anti-vaxxers be applied to the political speech of people who believe the election was stolen?
One can imagine a president or a court devising ingenious exceptions to basic First Amendment principles to permit banning speech in some cases. We should reject that temptation. Exceptions of this type will grow like fungus according to the political winds. The courts that will ultimately have to decide these cases are also not immune to those winds, especially as Democrats hold out the prospect of packing the Supreme Court with friendly appointees should decisions not go their way. Trump’s ire at his own court appointees suggests he, too, would make justice his political football if he’s elected again. Slow but steady erosion of our core democratic freedom will become a bipartisan pursuit if we walk down this path.
Biden’s laudable compassion is clouding his judgment. Presidential words matter, even those spoken in anger or exasperation. He should immediately reverse course on his efforts to coerce Facebook to restrict speech. All Americans should take note if he doesn’t.