We are living in a time of wars and rumors of wars. There have been many such periods since Jesus Christ forewarned his disciples on the Mount of Olives about the end of the world – and, until His Second Coming, wars and rumors of wars will assuredly continue.
Alongside the casualties of flesh and blood, both innocent and guilty, combatant and non-combatant alike, there is almost always collateral damage against infrastructure and objects. However, beyond the loss of life and property, the casualties of war also include certain laws and rights — sometimes entire countries. Freedom of speech is one such routine casualty of war, as sure a victim as the widowed wife and the fatherless child.
Today, two major conflicts dominate worldwide attention: the Russo-Ukrainian War and the Israel-Hamas War. These conflicts are no exception to this rule. Both Russia and Ukraine have restricted speech that the respective administrations consider counterproductive to their war efforts. Likewise, media coverage and social media discussion of the Israel-Hamas War has been plagued with allegations of censorship and misinformation.
Just as these conflicts have worldwide ramifications, there have also been worldwide consequences for the freedom of speech. In the United States, the brunt of speech restrictions have come from the mainstream media and social media companies, with companies like Google taking action to censor any content about the Russo-Ukrainian War that does not comport with their guidelines. Because the First Amendment limits government rather than private citizens or entities, many people are quick to opine that such “private” censorship, while they may disagree with it, is totally within Google’s rights.
However, this misses the reality that Google, Microsoft, and other tech companies have a much cozier relationship with our government than is apparent at first blush. For example, in 2020 the CIA signed a contract with Google, Microsoft, IBM, and Amazon Web Services to share cloud-computing networks with the nearly 20 United States’ intelligence agencies. Yes, you read that right. Your tax dollars fund almost 20 distinct intelligence agencies.
But the so-called private sector of Silicon Valley is not the only arena where lines are being drawn around speech. At the beginning of this year, legislation defining anti-Semitism was introduced in several state legislatures in response to Hamas’ Oct. 7, 2023, attacks on Israel. The various bills all use the International Holocaust Remembrance Alliance’s (“IHRA”) 2016 definition:
Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.
While proponents of the laws have emphasized that they only cover conduct – for example, the law in Indiana concerns equal, nonsegregated, and nondiscriminatory treatment in public education – opponents have argued that the laws will nevertheless have a silencing effect on pure speech. Even the author of the IHRA’s definition of antisemitism, Kenneth Stern, has said, “There’s an increasingly large number of young Jews for whom their Judaism leads to an antizionist position. I don’t want the state to decide that issue.” Such a discrepancy signals that these states may face First Amendment challenges as a result of wading into a delicate and controversial ideological battle, regardless of how well-intentioned and necessary the laws may be in fact.
Speech restrictions during wartime are not a new phenomenon in the United States. The Founders themselves fought one another in the very shadow of the Constitution’s ratification over President Adams’ 1798 Alien and Sedition Acts which restricted speech critical of the federal government in the midst of the undeclared Quasi-War with France. President Lincoln’s suspension of the right to habeas corpus (the right to protest unlawful imprisonment) during the Civil War facilitated the arrest and imprisonment of many newspaper editors critical of Lincoln. In the 20th century, the Sedition Act of 1918 and the Smith Act of 1940 were passed to restrict speech during World War I and in the lead-up to America’s involvement in World War II, respectively.
Each of these laws purported to deal with sedition, i.e., overt action to overthrow the government by force or violence. While preventing insurrection is a reasonable aim of government in order to maintain order, history has shown that the laws in practice were used to silence speech that merely dissented from war and advocated peace and/or against U.S. involvement.
As the world is again embroiled in wars and rumors of wars, we would be wise to heed President George Washington’s warning from 1783 in a letter to the officers of the Army, “[if] the freedom of Speech may be taken away . . . dumb & silent we may be led, like sheep, to the Slaughter.”
Talmadge Butts is Lead Staff Attorney for the Foundation for Moral Law (www.morallaw.org). Those with constitutional concerns may call the Foundation at (334) 262-1245 or email talmadge@morallaw.org.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819news.com.
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