A solid majority of Republicans continue to believe that Donald Trump won the 2020 election — evidence to the contrary notwithstanding. Virtually all Democrats believe that Trump did, in fact, lose the 2020 election and that Biden won fair and square.
Now in an extraordinary display of chutzpah, Representative Jim Jordan, Republican of Ohio, and fellow Republicans on the House Judiciary Committee have accused Democrats of violating the First Amendment rights of election deniers.
In a June 26, 2023, interim staff report, Jordan and his colleagues charged that the Biden administration “colluded with big tech and ‘disinformation’ partners to censor” those who claimed that Trump won in 2020.
The report, “The Weaponization of CISA: How a ‘Cybersecurity’ Agency Colluded With Big Tech and ‘Disinformation’ Partners to Censor Americans,” makes the argument that
• the First Amendment recognizes that no person or entity has a monopoly on the truth, and that the “truth” of today can quickly become the “misinformation” of tomorrow. Labeling speech “misinformation” or “disinformation” does not strip it of its First Amendment protection. As such, under the Constitution, the federal government is strictly prohibited from censoring Americans’ political speech.
These civil libertarian claims of unconstitutional suppression of speech come from the same Republican Party that is leading the charge to censor the teaching of what it calls divisive concepts about race, the same party that expelled two Democratic members of the Tennessee state legislature who loudly called for more gun control after a school shooting, the same party that threatens to impeach a liberal judge in North Carolina for speaking out about racial bias, the same party that has aided and abetted book banning in red states across the country.
In other words, it is Republicans who have become the driving force in deploying censorship to silence the opposition, simultaneously claiming that their own First Amendment rights are threatened by Democrats.
One of the most egregious examples of Republican censorship is taking place in North Carolina, where a state judicial commission has initiated an investigation of Anita Earls, a Black State Supreme Court justice, because she publicly called for increased diversity in the court system.
A June 2 Law360 piece examined the racial and gender composition of the North Carolina judiciary and found “that out of 22 appellate jurists — seven state Supreme Court justices and 15 Court of Appeals judges — 64 percent are male and 86 percent are white.”
The article then quoted Earls: “It has been shown by social scientists that diverse decision-making bodies do a better job. … I really feel like everyone’s voice needs to be heard, and if you don’t have a diverse judicial system, perspectives and views are not being heard, you’re not making decisions that are in the interests of the entire society. And I feel like that’s wrong.”
On Aug. 15, the North Carolina Judicial Standards Commission notified Earls that it was opening an investigation “based on an interview you since gave to the media in which you appear to allege that your Supreme Court colleagues are acting out of racial, gender and/or political bias in some of their decision-making.”
Earls’s interview, the notification letter continued, “potentially violates Canon 2A of the Code of Judicial Conduct, which requires a judge to conduct herself ‘at all times in a manner which promotes public confidence in the integrity and impartiality of the judiciary.’”
On Aug. 29, Earls filed suit in federal court charging that there is “an ongoing campaign on the part of the North Carolina Judicial Standards Commission to stifle” her First Amendment free speech rights “and expose her to punishment that ranges from a letter of caution that becomes part of a permanent file available to any entity conducting a background check to removal from the bench.”
At the center of Republican efforts to censor ideological adversaries is an extensive drive to regulate what is taught in public schools and colleges.
In an Education Week article published last year, “Here’s the Long List of Topics Republicans Want Banned From the Classroom,” Sarah Schwartz and Eesha Pendharkar provided a laundry list of Republican state laws regulating education:
• Since January 2021, 14 states have passed into law what’s popularly referred to as “anti-critical race theory” legislation. These laws and orders, combined with local actions to restrict certain types of instruction, now impact more than one out of every three children in the country, according to a recent study from U.C.L.A.'
Schwartz and Pendharkar also noted that “many of these new bills propose withholding funding from school districts that don’t comply with these regulations. Some, though, would allow parents to sue individual educators who provide banned material to students, potentially collecting thousands of dollars.”
What’s more, “Most prohibited teaching a list of ‘divisive concepts,’ which originally appeared in an executive order signed by then-President Donald Trump in fall 2020.”
The Trump order, Combating Race and Sex Stereotyping, included prohibitions on the following “divisive concepts”:
• That an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; that any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex; or that meritocracy or traits such as a hard work ethic are racist or sexist or were created by a particular race to oppress another race.
The censorship effort has been quite successful.
In a February 2022 article, “New Critical Race Theory Laws Have Teachers Scared, Confused and Self-Censoring,” The Washington Post reported that “in 13 states, new laws or directives govern how race can be taught in schools, in some cases creating reporting systems for complaints. The result, teachers and principals say, is a climate of fear around how to comply with rules they often do not understand.”
Larry Summers, a former president of Harvard who is a professor of economics there, argued in an email that issues of free speech are not easily resolved.
The problem, Summers wrote, “comes from both sides. Ron DeSantis’s efforts to limit what he regards as critical race theory is deplorable, as are efforts on Ivy League campuses to discredit and devalue those with unfashionable beliefs about diversity or the role of genes or things military.”
But, Summers continued,
• it’s sometimes a bit harder than the good guys make out. What about cultures of intolerance where those who, for example, believe in genetic determinism are shunned, and graduate students all exhibit their academic freedom rights to not be the teaching fellows of faculty with those beliefs. Does ideological diversity mean philosophy departments need to treat Ayn Rand with dignity or biology departments need to hear out creationism?
“What about professional schools where professional ethics are part of what is being instilled?” Summers asked, adding:
• Could a law school consider hiring a lawyer who, while in government, defended coercive interrogation practices? Under what circumstances should one accept, perhaps insist on university leaders criticizing speech? I have been fond of saying academic freedom does not include freedom from criticism, but when should leaders speak out? Was I right to condemn calls for divesting in Israel as antisemitic in effect, if not intent? When should speech be attacked?'
There is, at this moment, a nascent mobilization on many campuses of organizations determined to defend free speech rights, to reject the sanctioning of professors and students and to ensure the safety of controversial speakers.
Graduates of 22 colleges and universities have formed branches of the Alumni Free Speech Alliance “to support free speech, academic freedom and viewpoint diversity.”
At Harvard, 133 members of the faculty have joined the Council on Academic Freedom at Harvard, dedicated to upholding the free speech guidelines adopted by the university in 1990:
• Free speech is uniquely important to the university because we are a community committed to reason and rational discourse. Free interchange of ideas is vital for our primary function of discovering and disseminating ideas through research, teaching and learning.'
Steven Pinker, a psychology professor at the school and a founder of the group, wrote in an email that achieving this goal is much tougher than generally believed:
• To understand the recent assaults on free speech, we need to flip the question: not why diverse opinions are being suppressed, but why they are tolerated. Freedom of speech is an exotic, counterintuitive concept. What’s intuitive is that the people who disagree with me are spreading dangerous falsehoods and must be stifled for the greater good. The realization that everyone feels this way, that all humans are fallible, that however confident I am in my beliefs, I may be wrong and that the only way we can collectively approach the truth is to allow opinions to be expressed and then evaluate them, requires feats of abstraction and self-control.'
The example I cited at the beginning of this column — the charge that the Biden administration “colluded with big tech and ‘disinformation’ partners to censor” the claims of election deniers — has proved to be a case study of a successful Republican tactic on several fronts.
Republicans claimed the moral high ground as the victims of censorship, throwing their adversaries on the defensive and quieting their opponents.
On June 6, The Washington Post reported, in “These Academics Studied Falsehoods Spread by Trump. Now the G.O.P. Wants Answers,” that
• the pressure has forced some researchers to change their approach or step back, even as disinformation is rising ahead of the 2024 election. As artificial intelligence makes deception easier and platforms relax their rules on political hoaxes, industry veterans say they fear that young scholars will avoid studying disinformation.
One of the underlying issues in the free speech debate is the unequal distribution of power. Paul Frymer, a political scientist at Princeton, raised a question in reply to my email: “I wonder if the century-long standard for why we defend free speech — that we need a fairly absolute marketplace of ideas to allow all ideas to be heard (with a few exceptions), deliberated upon and that the truth will ultimately win out — is a bit dated in this modern era of social media, algorithms and, most importantly, profound corporate power.”
While there has always been a corporate skew to speech, Frymer argued,
• in the modern era, technology enables such an overwhelming drowning out of different ideas. How long are we hanging on to the protection of a hypothetical — that someone will find the truth on the 40th page of a Google search or a podcast with no corporate backing? How long do we defend a hypothetical when the reality is so strongly skewed toward the suppression of the meaningful exercise of free speech?'
Frymer contended that
• we do seem to need regulation of speech, in some form, more than ever. I’m not convinced we can’t find a way to do it that would enable our society to be more just and informed. The stakes — the fragility of democracy, the increasing hatred and violence on the basis of demographic categories and the health of our planet — are extremely high to defend a single idea with no compromise.'
Frymer suggested that ultimately
• we can’t consider free speech without at least some understanding of power. We can’t assume in all contexts that the truth will ever come out; unregulated speech does not mean free speech.
From a different vantage point, Robert C. Post, a law professor at Yale, argued in an email that the censorship/free speech debate has run amok:
• It certainly has gone haywire. The way I understand it is that freedom of speech has not been a principled commitment but has been used instrumentally to attain other political ends. The very folks who were so active in demanding freedom of speech in universities have turned around and imposed unconscionable censorship on schools and libraries. The very folks who have demanded a freedom of speech for minority groups have sought to suppress offensive and racist speech.'
The framing in the current debate over free speech and the First Amendment, Post contended, is dangerously off-kilter. He sent me an article he wrote that will be published shortly by the scholarly journal Daedalus, “The Unfortunate Consequences of a Misguided Free Speech Principle.” In it he notes that the issues are not just more complex than generally recognized but also are distorted by false assumptions.
Post makes the case that there is “a widespread tendency to conceptualize the problem as one of free speech. We imagine that the crisis would be resolved if only we could speak more freely.” In fact, he writes, “the difficulty we face is not one of free speech, but of politics. Our capacity to speak has been disrupted because our politics has become diseased.”
He specifically faults a widely read March 2022 Times editorial, “America Has a Free Speech Problem,” that warned:
• Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned.
Post observes that
• no such right exists in any well-ordered society. If I walk into a room shouting outrageous slurs, I should expect to be shamed and shunned. Only a demoralized community would passively accept irresponsibly hurtful speech.
People constantly “balance self-restraint against the need for candor.”
Arguments that the protection of free speech is crucial to the preservation of democracy, Post maintains, “encourage us to forget that the fundamental point of public discourse is the political legitimation of the state. Our public discourse is successful when it produces a healthy public opinion capable of making state power answerable to politics.”
In Post’s view, polarization “is not a simple question of speech. It is the corrosive dissolution of the political commitments by which Americans have forged themselves into a single nation. If we conceptualize public discourse as a social practice, we can see that its failures stem from this fundamental problem.”
In this context, Post concludes,
• Politics is possible only when diverse persons agree to be bound by a common fate. Lacking that fundamental commitment, politics can easily slide into an existential struggle for survival that is the equivalent of war. We can too easily come to imagine our opponents as enemies, whose victory would mean the collapse of the nation.
In such circumstances, Post continues,
• Political debate can no longer produce a healthy and legitimate democratic will. However inclusive we may make our public discourse, however tolerant of the infinite realms of potential diversity we may become, the social practice of public discourse will fail to achieve its purpose so long as we no longer experience ourselves as tied to a common destiny.
“We cannot now speak to each other because something has already gone violently wrong with our political community,” Post writes. “The underlying issue is not our speech, but our politics. So long as we insist on allegiance to a mythical free speech principle that exists immaculately distinct from the concrete social practices, we shall look for solutions in all the wrong places.”
