Neither Harris nor Trump is a friend of free speech – Daily News

During last week’s vice presidential debate, the Democratic candidate, Minnesota Gov. Tim Walz, asked his Republican opponent, Sen. JD Vance (R-Ohio), whether then-President Donald Trump lost his 2020 bid for reelection. Because Vance did not want to choose between contradicting reality and contradicting his running mate, he dodged that question, instead posing one of his own: “Did Kamala Harris censor Americans from speaking their minds in the wake of the 2020 COVID situation?”

Although that pivot was puzzling, it rescued Vance from an uncomfortable situation while highlighting the vice president’s disregard for freedom of speech and Walz’s alarming misconceptions about the First Amendment. Yet Vance himself seems confused about the constraints imposed by that constitutional guarantee, and so does Trump.

Vance was referring to the Biden administration’s persistent pressure on social media platforms to suppress content that federal officials viewed as dangerous to public health. But even before the pandemic, Harris showed she was no friend to freedom of speech.

“We will hold social media platforms accountable for the hate infiltrating their platforms, because they have a responsibility to help fight against this threat to our democracy,” Harris, then a senator, said while seeking the Democratic presidential nomination in 2019. “If you profit off of hate, if you act as a megaphone for misinformation or cyber warfare, if you don’t police your platforms, we are going to hold you accountable.”

Like Harris, Walz thinks the First Amendment is no barrier to government censorship of “hate speech” or “misinformation,” as he made clear in a 2022 MSNBC interview. When Vance alluded to those comments during the debate, Walz doubled down.

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

That misbegotten, misleading and much-abused analogy, which comes from a 1919 case in which the justices unanimously upheld the Espionage Act convictions of two Socialist Party leaders who had distributed antidraft flyers during World War I, is not now and never has been “the Supreme Court test.” The court in that case applied the “clear and present danger” test, which it repudiated half a century later in favor of a standard that makes it much harder to punish people for controversial speech.

The latter case, which involved racist and anti-Semitic remarks by a Ku Klux Klan leader, also shows that Harris and Walz are flatly wrong in asserting a “hate speech” exception to the First Amendment. As the Supreme Court has repeatedly held, bigots have a constitutional right to express their views, no matter how hateful or offensive.

The idea that “misinformation” is not covered by the First Amendment is equally misguided. Outside of limited contexts such as defamation and commercial fraud, even outright lies are constitutionally protected, and an exception for the much broader and highly contested category of “misinformation” would be an open-ended license to censor speech that government officials do not like.