Back in 1919, in the Schenck v. United States decision, Justice Oliver Wendell Holmes reasoned that Schenck’s right to speech was not protected under the First Amendment because:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
In 1969, the decision in Brandenburg v. Ohio limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action.
Today, in March 2021, we are hearing a lot about the right of free speech in re the January 6 insurrectionists and their supporters, and the right of certain persons of a certain political bent to express their uncensored views on social media.
Justice Holmes’ use of the word falsely was not an accident. It spoke to the heart of the issue. In the lead up to, and on the day of, the January 6th insurrection, Trump used claims of voter fraud that he knew to be false to incite an insurrection. The First Amendment, under neither of the two decisions, Schenck nor Brandenburg, protected him. What Trump did was every bit as dangerous as falsely yelling fire in a crowded theatre.
Over the years, Facebook has allowed the posting of incendiary information on Facebook that it knew to be false while claiming it rights to do so were protected under the First Amendment. A dubious claim, at best.
Of late, Senator Ted Cruz, TX, has become very concerned about his First Amendment rights; specifically, about the rights of he and his fellows travelers to post things known to be false on Facebook and other social media. Also, of late, Senator Cruz has been very worried about Congress taking away First Amendment rights granted by the Citizens United decision to the very wealthy to buy elections; diminishing the rights of the people to elect their government by giving the very wealthy disproportionate power to determine the outcome of elections.
In September 2020, Senator Tom Cotton, AR, says on twitter that, “The First Amendment protects your right to worship. End of Story.” The month before, Senator Cotton and Senate colleagues McConnell, Cramer, and Loeffler had introduced the Campus Free Speech Restoration Act, a bill to protect the First Amendment rights of University students; to free speech one assumes. Lot going on at the time, no doubt, no worry. But, be assured, Senator Cotton does think about The First Amendment a lot of the time.
Senators Cruz, Cotton, and Mike Lee, UT are all very concerned about control of content by Facebook, Twitter, et al; feeling that that these social media companies are denying conservatives like themselves their right to free speech granted by the First Amendment. Senator Lee is quite sure that the social media companies never censor liberal content; only conservative. He gives President Obama and President Trump, Republican Senators and Democratic Senators as example; doesn’t mention the falsely part.
Does the First Amendment grant a politician, anyone, the right to say, to broadcast in an any way, something false? Did Donald Trump really have a constitutional right to tell those 30,000 lies? To broadcast them via any and all forms of media?
Leaving aside Holmes’ crowded theatre and the possible consequences of falsely yelling fire therein; does the First Amendment grant the right to false speech? Does the First Amendment grant Fox News the right to broadcast lies during an election year? Lies that may cause great harm at any time? Does the First Amendment grant any media the right to propagate lies at any time? Did QAnon have a constitutional right to broadcast the lie that Hillary Clinton was running a pedophile ring out of a pizza shop? Did Facebook have a constitutional right to help propagate such a lie? Is the First Amendment to conservatives what the Second was to the NRA? (Just think what Justice Scalia could have done with the clauses, the whole of the First Amendment, given the opportunity.) Does the First Amendment give each of us citizens the right to tell bald-faced lies?
No doubt, the intention of the — or abridging the freedom of speech, or of the press — clause of the First Amendment was to allow for the free flow, free discussion, of ideas. As we have learned, all too well of late, lies are not conducive to discussions. Never were.
Can the First Amendment be applied to such as reality? Does everyone have a right to posit, to broadcast, their own reality under the First Amendment? To whose possible benefit is the right to just make stuff up? To counter facts with stuff that was made up?
If any of these questions make it to the Supreme Court, what will today’s Bush/McConnell/Trump Supreme Court have to say on the meaning of the First Amendment in re free speech?