The New York Times: “The Problem of Free Speech in an Age of Disinformation”

But the Supreme Court has strongly protected hate speech. In 1992, the Supreme Court unanimously said that the City of St. Paul could not specially punish, as a hate crime, the public burning of a cross or the display of a swastika. In 2011, in an 8-to-1 vote, the court said the government could not stop members of the Westboro Baptist Church in Kansas from picketing military funerals across the nation to protest what they perceived to be the government’s tolerance of homosexuality by holding signs like “Thank God for Dead Soldiers”. Speech can inflict great pain, Chief Justice John G. Roberts Jr. wrote for the majority. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

In 2012, by a 6-to-3 vote in United States v. Alvarez, the court provided some constitutional protection for an individual’s intentional lies, at least as long as they don’t cause serious harm. The majority said that the mere potential for government censorship casts a chill the First Amendment cannot permit if free speech, thought and discourse are to remain a foundation of our freedom.

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By requiring the state to treat alike categories of speakers — corporations and individuals — the Supreme Court began to go far beyond preventing discrimination based on viewpoint or the identity of an individual speaker. Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful, MacKinnon, now a law professor at the University of Michigan, wrote in “The Free Speech Century”, a 2018 essay collection. Instead of radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, she wrote, the First Amendment now serves authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections. In the same year, Justice Elena Kagan warned that the court’s conservative majority was weaponizing the First Amendment in the service of corporate interests, in a dissent to a ruling against labor unions.

Emily Bazelon

Earlier this year I set out to stay away from topics regarding American politics and society, at least for a while, but I found this article pretty interesting and going to the heart of the problem. I agree with many of the conclusions presented here, as I already wrote in my article about the TikTok potential ban. As things stands, I seems to me that lying has more protections in the US than telling the truth! When people spread lies they can easily find others to agree with them and spread the message; when someone tells the truth it can be met with harassment and online attacks – which are also protected speech, so you can do very little about it (legally).

A demonstration at the Lincoln Memorial after the Supreme Court’s Citizens United decision in 2010. Chip Somodevilla/Getty Images

Another reason political ads are controversial online is that campaigns or groups that pay for them don’t have to disclose their identities, as they’re required to do on TV and radio and in print. The First Amendment value of individual autonomy means we should know who is speaking to us and why, the Rutgers law professor Goodman argues. But online, neither the Supreme Court nor Congress has stepped in to require disclosure.

The vitriolic reaction to the article on Twitter is very revealing about American’s attitudes and inflexibility: the US Constitution is sacrosanct (ignoring how it was constantly reinterpreted by decisions of the Supreme Court, which is increasingly used as a political instrument), the experience and jurisprudence of other democracies are irrelevant because somehow Americans know better than the rest, negative consequences have to be accepted in order to prevent ‘censorship’ – even better when consequences happen to someone else.

Marine Le Pen, Macron’s far-right opponent, accused the news media of a partisan cover-up. But she had no sympathetic outlet to turn to, because there is no equivalent of Fox News or Breitbart in France. The division in the French media isn’t between left and right, said Dominique Cardon, director of the Media Lab at the university Sciences Po. It’s between top and bottom, between professional outlets and some websites linked to very small organizations, or individuals on Facebook or Twitter or YouTube who share a lot of disinformation. The faint impact of the Macron hack is a good illustration of how it’s impossible to succeed at manipulation of the news just on social media, said Arnaud Mercier, a professor of information and political communication at the University Paris 2 Panthéon-Assas. The hackers needed the sustainment of the traditional media.

As an outsider, I am more concerned about the ideas and behaviors America is spreading to other countries, particularly in Europe, where many are following American culture closely and adopting its traits without much reflection, from political correctness to anti-immigrant rhetoric, antivaxer propaganda and science denialism.