Post-debate fact-checkers analyzing Tuesday night’s debate between Sen. J.D. Vance (R-OH) and Minnesota Gov. Tim Walz have found that the Democrat made a damning false claim that went unnoticed by the CBS moderators who were quick to call out Vance throughout the event.
Although the single vice presidential debate was largely cordial, a point of contention came in the first half when Vance directly asked Walz why he and fellow Democrats are content to stifle dissent online. He cited proven instances of the Biden-Harris administration pressuring social media companies to mute or ban users who spoke out against Covid-19 mandates, the efficacy of masks, or criticized lockdown procedures implemented across the nation. During the Republican’s answer, Walz interjected, saying “misinformation” isn’t protected by the First Amendment. Not true, writes Reason.
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“The would-be vice president is wrong to say that misinformation lacks First Amendment
protection,” the libertarian outlet writes, concurring with others that even outright lies about the government are protected free speech. In his answer, Walz attempted to compare opinions on the pandemic to shouting “fire” in a crowded theater, a limit to free speech immortalized by Justice Oliver Wendell Holmes Jr.’s opinion in the 1919 U.S. Supreme Court case Schenck v. United States. In doing so, author Robby Soave writes, Walz was “disrespecting the most important democratic norm of all: free speech.”
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On that point, Soave concludes, the governor is “very wrong. He’s correct to note that true threats of violence lack First Amendment protection if they are specific enough. Misinformation and hate speech are absolutely protected by the First Amendment, however. And while the former is a relatively new category of expression facing explicit calls for censorship, the latter category hate speech has been exhaustively litigated before the Supreme Court.”
But even the notion of shouting “fire” in a crowded theater originated during a debate over foreign military conflicts, when the justice suggested that raising doubts about American military might may be dangerous and lead to further conflict. Today, the idea of criticizing American diplomacy and the military industrial complex is not just bipartisan, but commonplace.
“Today we recognize that the right to criticize U.S. military policy and oppose foreign wars is an essential component of the First Amendment,” Soake writes. “And the Supreme Court
agrees: Schenk was gradually overturned by subsequent decisions. The right to engage in speech that the government might deem reckless, dangerous, or hateful was explicitly affirmed in the 2017 case Matal v. Tam, in which Justice Samuel Alito observed ‘the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”‘ It could not be more simple: Hate speech is protected by the First Amendment.”
While the Supreme Court has not specifically taken up misinformation, it is obvious to Soave that facts can be subjectively interpreted to fit the audience and the argument. “The Enlightenment principle that undergirds the First Amendment and democracy itself is that the best way to counter bad information is to allow everyone to speak,” he writes. Therefore, for Gov. Walz to defend online speech suppression that federal courts have already found violated the First Amendment, was a glaring oversight by CBS moderators who were all too quick to clarify claims abou
t migrants that Vance didn’t even make that night.
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