Free Speech...For Sale or Rent

Oral arguments were given today on the First Amendment cases concerning the government influencing social media sites to ban and censor speech. I listened to the greater share of it, though I could not do so and remain unprovoked. I don’t know who was arguing the case on either side and didn’t particularly care, because the poor quality of arguments were remarked on even in the chat box next to the screen.

Justice Jackson probably made the worst case and exposed herself as someone who has little or no understanding of the principles of the First Amendment, but obviously subscribed to Obama’s definition of the Bill of Rights as a Bill of Negative Rights in that they told the government what it cannot do. She asked “if these people are giving false information, are suggesting that the government can do nothing about that?” (paraphrased) If you understand the ideology of these communists, there’s nothing the government can’t do and therefore the Bill of Rights negate the ability of government to do whatever it wants. Yes! Absolutely right.

First of all, I argue that the Bill of Rights contain rights the people have over the government, in spite of it, regardless of it and in that sense Obama is right, but that’s the whole point. It does tell the government what it cannot do, but that doesn’t make it a “negative right” it makes it a right of the people rather than a right of the government. It would be a right of the people, even if there were no government at all.

The First Amendment is the right of the people to speak freely, especially about political issues, but the court, or the lesser justices on it, seemed to believe that the people lose that right when they spread falsehoods and that the government, in its wisdom and infallible integrity, had a right to stop the falsehoods and supplant it with their information as the only accurate and truthful information available.

The supposition that the government always tells the truth should have been challenged more vigorously. The idea that the government can even request that a social media site pull down vast amounts of individual statements that contain some aspect of faulty information simply by some government official requesting it, even if they didn’t make a threat, was not challenged vigorously enough.

I did not feel at all that the people were getting the best representation out of the attorneys. Some of the people in the chat box seemed to have a better understanding of the issues and the arguments to be made for or against them.

Let’s break this down a little bit. There is the old maxim that one has the right to say anything they want, but they can’t yell “fire” in a crowded theater. First, one has to determine whether the theater is “crowded” or not, but what if it was, does that mean that one cannot yell “fire” if there is a fire? If there was a fire why is there an expectation that the people would not calmly and with due orderliness file out of the theater through several exit points?

One of the situations Justice Jackson kept coming back to is if there was someone online who put out a challenge for children to jump out of windows of buildings and the challenge was to increasingly jump from a higher window than anyone had previously. We see where this ultimately goes.

The argument to that, that the attorney did not make that should have been made is this: Of the people who found that dangerous, they should go on social media and deride it as stupid and dangerous. When parents heard of this challenge, they should talk to their children and explain to them how dangerous it is and that they should not take part in it. Pictures of children who were killed doing this, should be shared on social media as a warning. But even all of this doesn’t recognize that a lot of children would be able to sniff this out as stupid and dangerous on their own. Nowhere is there an obligation or a desire for government to get in the middle of it and do anything about it.

That’s where I felt provoked. Everything the government was arguing seemed to expect that the people themselves were incapable of making any sort of valuation as to the information they received. The vaxx hesitancy should have proven that assumption to be false. Yes, a lot of people fell for taking the vaxx with the whole of government, industry, media and health professionals urging them to do it. When they had to choose whether to keep their job or refuse the vaxx, but a lot of people didn’t.

The whole of the arguments relied on the fact that the people are too stupid to be able to make that evaluation. No one, that I heard, argued for the ability of the American people to defend themselves from lies and stupid challenges. The First Amendment relies on the fact that people are able to listen to every aspect of an issue, the pros and cons, the lies and the truth and arrive at some decision that seems most likely to benefit them, or to keep them from harm.

No one cares more about one’s health and well-being than themselves. This was the argument for seat belts made in 1987, that I found faulty. They claimed that the government cared more about my health and life than I did and I knew that was not true, therefore, they should not be able to force me to wear a seat belt. They could not be with me on a winding, twisting road next to a raging river where if I wound up in the river I would probably drown if I wore one. They could not be with me when my car caught on fire and I might be burned alive if I couldn’t get out of it. When there is a chance that government advice or demands can lead to my death, I reject their ability to make that demand. I don’t mind if they offer their opinion or show me a graph of how many more people are injured or die because they don’t wear a seat belt, but the ultimate decision is up to me. Likewise, people tell me lies and try to convince me of all sorts of things on social media and learning to recognize stupidity is part of the maturation process. They seemed to believe that the government had some say in it and I refuse to believe that.

The other issue that seemed to get little discussion was the idea that the government, like anyone else, might be able to go to the person proposing children jump out of windows and dissuade them from doing so, but there is nowhere within the First Amendment that suggests they have a right to go to some third-party and convince them to refuse to publish views they dislike or disagree with, even if harmful, because who knows what is harmful? The simple accusation is not a profession of truth. Where is the evidence that anyone has been harmed?

As we have seen often in the actions surrounding the pandemic, statements of false assurances by the government were false, but there was no one advocating that they should be taken off of social media until they prove, with documented fact, that the vaxx was “safe and effective.” Even if there were, they did not have the stature to enforce that desire on a social media outlet, but one might, themselves, conclude that the government was lying about its efficacy. That’s why the government should not be able to do the same, because they carry the weight of law, of strict regulation and no one has that power over them, so they should not be involved in questions of freedom of speech at all.

What they seem to be willing to allow to stand is that it’s an issue between the social media companies and the government and what level of cooperation would allow the people the freedom of speech. It is neither, nor. Keep them both out of it. It should only be after the commission of a crime, i,e., inciting a riot, that what someone said about it or where they said it should come into the discussion, certainly not to prevent it and not to the degree to which the justices on all sides seemed willing to allow the restriction of speech for the “better good.”

It doesn’t matter what the Supreme Court ultimately rules, the battle lines are drawn. Think of all of the harmful things the government has proposed, the work that has been done to expose it. If you take that right away from the people, the right to expose lies of the government, to offer counterpoints to their disinformation, all because the court is afraid the people might do something harmful or dangerous, they don’t understand the very concept of freedom and it’s time to rip the whole thing down. No one in positions of power seems able to understand the simplest ideals on which this nation was founded.

Visit 12 Round Productions for novels, non-fiction titles and the film Lies of Omission. I’m going to be doing some podcasts in the near future, picking up where I left off some time ago, but it will be a different format, shorter and more focused on recent events.