Free Speech in America

Ava Rosenow

Courtesy of PolicyEd

Free speech has been a defining part of America since its creation. There’s a reason it’s in the First Amendment. An ability to speak freely and an opportunity to hear everyone’s voice are essential to a prosperous society and, in America’s case, democracy. However, especially as we continue living in a digital age, there’s a question to answer: What are the limits of free speech? 

One way this question pops up is in relation to misinformation. The saying “you can’t shout ‘fire’ in a crowded theater” is often used to portray unprotected speech (though it is, in fact, legal), but what about when someone tweets that vaccines give you autism during a pandemic? According to Dr. Vivek Murthy, President Biden’s surgeon general, “Health misinformation [as] a serious threat to public health,” and “limiting the spread of health misinformation is a moral and civic imperative that will require a whole-of-society effort.” He called for social media platforms to take a more active role in dispelling misinformation and monitoring what spreads on their platforms. This request did not sit well with everyone, including the Republican state attorney generals of Missouri and Louisiana, who sued the White House and dozens of officials. The attorney generals accused them “of forcing the platforms to stifle the voices of its political critics,” which violates the constitutional guarantee of free speech. Additionally, Florida and Texas proposed laws banning platforms from stifling posts or accounts, though only Texas’ passed. The law, HB 20, which was upheld in the U.S. Court of Appeals for the 5th Circuit in September 2022, would make it illegal for major social media platforms to ‘block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression,” slowing any action against misinformation.

However, in September 2022, California Governor Gavin Newsom signed AB 2098, which designates “the dissemination of misinformation or disinformation related to… ‘COVID-19′” as “unprofessional conduct” for physicians and surgeons. The law, an attempt to crack down on misinformation, the opposite of HB 20, was blocked in January of 2023 by the U.S. District Court for the Eastern District of California due to its “unclear phrasing…structure” and the fact that there is “no assurance that the statute will be interpreted by courts or applied by the boards consistently with the defendants’ proposed interpretation.” While the phrasing certainly does leave much to be desired and needs some major revisions, a large portion of the protesting came from anger about the government trying to regulate what people can and cannot say, even though the end goal is to protect people’s health.

The other side of the discussion about the limits of free speech surrounds cancel culture and the rampant political polarization facing America. Under the first amendment, “speech may not be banned on the grounds that it expresses ideas that offend.” So how should we deal with hate speech? How do we even define what hate speech is? In order to have a free and open society, people cannot be afraid to speak their minds, and cancel culture has started to creep in and stifle that spirit. Especially for academic institutions, the ability to hear out opposing opinions calmly, consider the given argument, and use it to strengthen and challenge your thoughts is essential to growing as a person and a student. When people are so polarized that this exchange of ideas becomes impossible because either those with dissenting opinions fear the consequences of speaking them or the only opposing view is so extreme that people feel unsafe, our fundamental rights become destabilized. Cancel culture overall isn’t bad; having “a way of combatting…the huge power imbalances that often exist between public figures with far-reaching platforms and audiences, and the people and communities their words and actions may harm” is a precious tool, one that wouldn’t be possible without the internet. But, when anyone with a controversial opinion immediately gets publicly defamed, the avenue for calm discussion shuts down, and they’re left angry, humiliated, and pushed even more extreme. Silencing people is not the correct way to deal with disagreements. Both the left and the right are guilty of censorship, from Wesleyan students debating “cutting funding for the student newspaper after it ran an op-ed criticizing the Black Lives Matter movement” to Florida’s Parental Rights in Education Act (or the Don’t Say Gay bill), which “seeks to ban public schools in the state from teaching about sexual orientation or gender identity.” The right to free speech means walking a fine line between creating an inclusive society where every identity feels welcomed and allowing people to ask questions and express their opinions without fear of extreme retribution. 

Hate speech is another issue. Nohemi Gonzalez, a college student from the US, was killed in one of a series of terrorist attacks while studying abroad in Paris. Her father sued Google, among other companies, and “accused the firms of spreading content that radicalized users into becoming terrorists, and said they were therefore legally responsible for the harm inflicted.” Mr. Gonzalez’s lawsuit targets Section 230 of the Communications Decency Act, which states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Essentially, it prevents social media companies from being liable for everything anyone says on their platform to ensure the companies can provide an open forum without fearing lawsuits at every turn. Both sides of the political spectrum take issue with it. “Republicans worry that Section 230 gives internet companies too much leeway to suppress what people say online. Democrats believe that it gives internet companies a pass for failing to effectively…prevent extremists from organizing violence.” The first amendment protects citizens’ right to say what they want regardless of whom it may offend. So how can the government and social media platforms protect against hate speech, even if it may have disastrous consequences?

The limitations of the right to free speech is an incredibly volatile subject in the United States. In an increasingly digital, increasingly polarized world, the role of government in protecting that right vs. protecting people’s safety is murky, and there is no clear precedent to follow. There is a reason this issue of Discourses is entitled “No Easy Answers” and there certainly isn’t one for balancing freedom of speech and censorship. The challenge will be to regulate misinformation and hate speech as well as hold people accountable while preserving the free exchange of ideas. The many cases currently in contention on this subject will guide how America adapts the constitution to the modern world.

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