In his 1997 book "No Liberty for License: The Forgotten Logic of the First Amendment," David Lowenthal explained a principle understood by the American Founders: Freedom without limits degenerates into mere license, total unrestricted autonomy, which is a threat to freedom.
Based on this principle, absolute licenses were not enshrined in the Constitution. Instead, the Constitution’s framers carefully crafted liberties with inherent limitations to guarantee that the freedoms required for a self-governing republic would survive.
This applies to the First Amendment. The natural law that entitles us to speak freely does not protect socially valueless speech like obscenity, true threats, and false advertising. There are many reasons we do not want absolutely free speech, including national security, intellectual property rights, and the fragility of a person’s good name that can be ruined by false accusations.
Yet these good reasons against total license can instantly be turned around to justify encroachments on our liberty. Such is the case with censorship of speech surrounding COVID-19, an issue heard before the U.S. Supreme Court last week in Murthy v. Missouri.
Since 2020, Alabama’s public health officials have claimed that COVID “misinformation” on social media is a public safety risk. These officials have appeared multiple times in the media and published many statements to “combat” and “debunk” the “misinformation.”
This was the same reasoning used nationwide on America’s major social media platforms when they initiated their “COVID-19 Misinformation Interventions.” This involved flagging, labeling, and taking down statements by users who opposed or questioned the government’s pandemic responses (most commonly, vaccine mandates). The goal of this censorship was to curb “vaccine hesitancy” and prevent any “delegitimization” of government medical authorities.
However, discovery in the Murthy litigation and subpoenas by the House Judiciary Committee produced evidence that these “interventions” were actually directed by the Biden administration.
Under the Constitution, “what cannot be done directly” by the federal government, “cannot be done indirectly,” Chief Justice Roberts wrote in Students for Fair Admissions v. Harvard (2023). The Supreme Court has also said that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”
If the Court finds in Murthy that the government coerced social media platforms to take down COVID “misinformation,” this would mean that the government silenced viewpoints on a matter of serious public concern on the basis that they differed from the government’s position, which is, of course, the precise conduct prohibited by the First Amendment.
But wasn’t the president just keeping us safe? Safe from false information that might lead us to mistakenly harm ourselves?
We all agree that defamation law, intellectual property law, obscenity laws, and the like are appropriate limits on our First Amendment liberty. Why not add one more? Isn’t “misinformation” about the pandemic just as dangerous as shouting “fire” in a crowded theater? Shouldn't such speech be excluded from constitutional protection, regardless of its political significance, so that the government can keep us all healthy?
The Founders would probably demand to know what kind of “health” a citizen can enjoy when he or she cannot even express disagreement with the government.
Americans possess a right to “speak and listen” on social media, the Supreme Court said in Packingham v. North Carolina (2017). Of course, there must be limits on free speech to protect the public, like a prohibition on shouting “fire” in a crowded theater, but as one author for The Atlantic acknowledged, this classic example of dangerous speech is not analogous to COVID “misinformation.”
If a statement of “misinformation” on social media is dangerous because it could convince the public that the government’s measures are not safe or effective, causing them to refuse the measures, does this not suggest that these statements are compelling, have social value, and are worthy to be heard? Moreover, doesn’t the government’s desire to censor these statements suggest that it would struggle to keep the public convinced of its position if the opposition was fully expressed?
In Brandenburg v. Ohio (1969), the Supreme Court said that speech intended to incite or produce imminent lawless action, and likely to incite such action, was excepted from First Amendment protection. But mere “misinformation” or “disinformation” has never been excepted from the First Amendment. Instead, as Justice Oliver Wendell Holmes (original author of the “crowded theater” scenario) wrote, “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
Accordingly, the First Amendment’s answer to “misinformation” is clear: “The remedy to be applied is more speech, not enforced silence,” as Whitney v. California (1927) held.
Regardless of their merit, statements opposing the vaccine and other measures cannot be intercepted by the government. Under the First Amendment, Americans are entitled to be wrong – with the limitation that we cannot make false accusations without being subject to liability for the damages they may cause. But even defamation law recognizes that on matters of public concern or concerning a public figure, it should be especially difficult to justify punishing speech.
Although the First Amendment did not grant an unrestricted license to speak anything, anywhere, it certainly protects the fundamental right to outwardly disagree with or question the government’s point of view. Hopefully, we will see this fact affirmed by the Supreme Court this summer.
Katrinnah Darden is a Staff Attorney at the Foundation for Moral Law located in Montgomery, Alabama (www.morallaw.org). Those with constitutional concerns may call the Foundation at 334-262-1245 or email contact@morallaw.org.
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