The most anti-free speech ticket in history

Jonathan Turley is on target.

The road to tyranny is paved with restrictions on free speech.
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“Schencking” Free Speech: Walz Makes the Case for the Most Anti-Free Speech Ticket in History

Below is my column in USA Today on the most chilling moment from the Vance-Walz debate when the Democratic nominee showed why he is part of the dream ticket for the anti-free speech movement.

Here is the column:

In the vice presidential debate Tuesday, Minnesota Gov. Tim Walz pulled the fire alarm.

His opponent, Sen. JD Vance, R-Ohio, cited the massive system of censorship supported by Vice President Kamala Harris and her running mate.

Walz proceeded to quote the line from a 1919 case in which Supreme Court Justice Oliver Wendell Holmes said you do not have the right to falsely yell fire in a crowded theater.

It is the favorite mantra of the anti-free speech movement. It also is fundamentally wrong.
In my book “The Indispensable Right: Free Speech in an Age of Rage,” I discuss the justice’s line from his opinion in Schenck v. United States. Holmes wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

‘Fire in a theater’ case supported government censorship

As I discuss in the book, the line was largely lifted from a brief in an earlier free speech case. It has since become the rationale for politicians and pundits seeking to curtail free speech in America.

For example, when I testified last year before Congress against a censorship system that has been described by one federal court as “similar to an Orwellian ‘Ministry of Truth,’” Rep. Dan Goldman, D-N.Y., interjected with the fire-in-a-theater question to say such censorship is needed and constitutional. In other words, the internet is now a huge crowded theater and those with opposing views are shouting fire.

Goldman and Walz both cited a case in which socialists Charles Schenck and Elizabeth Baer were arrested and convicted of violating the Espionage Act of 1917. Their “crime” was to pass out flyers in opposition to the military draft during World War I.



Schenck and Baer called on their fellow citizens not to “submit to intimidation” and to “assert your rights.” They argued, “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.” They also described the military draft as “involuntary servitude.”

Holmes used his “fire in a theater” line to justify the abusive conviction and incarceration. At the House hearing, when I was trying to explain that the justice later walked away from the line and Schenck was effectively overturned in 1969 in Brandenburg v. Ohio, Goldman cut me off and said, “We don’t need a law class here.”

In the vice presidential debate, Walz showed that he and other Democratic leaders most certainly do need a class in First Amendment law.

As I have said, the Biden-Harris administration has proved to be the most anti-free speech administration in two centuries. You have to go back to John Adams’ administration to find the equal of this administration.

Harris has been an outspoken champion of censorship in an administration that supports targeting disinformation, misinformation and “malinformation.” That last category was defined by the Biden administration as information “based on fact, but used out of context to mislead, harm, or manipulate.”

In the debate, Walz also returned to his favorite dismissal of censorship objections by saying that it is all just inflammatory rhetoric.

Recently, Walz went on MSNBC to support censoring disinformation and declared, “There’s no guarantee to free speech on misinformation or hate speech, and especially around our democracy.”

That is entirely untrue and shows a fundamental misunderstanding of the right called “indispensable” by the Supreme Court. Even after some of us condemned his claim as ironically dangerous disinformation, Walz continues to repeat it.

Free speech advocates view Harris as a threat

This is why, for the free speech community, the prospect of a Harris-Walz administration is chilling. Where President Joe Biden was viewed as supporting censorship out of political opportunism, Harris and Walz are viewed as true believers.

We are living through the most dangerous anti-free speech movement in American history. We have never before faced the current alliance of government, corporate, academic and media forces aligned against free speech. A Harris-Walz administration with a supportive Congress could make this right entirely dispensable.

Others are laying the groundwork for precisely that moment. University of Michigan Law School professor and MSNBC legal analyst Barbara McQuade has said that free speech “can also be our Achilles’ heel.”

Columbia law professor Tim Wu, a former Biden White House aide, wrote a New York Times op-ed with the headline, “The First Amendment Is Out of Control.” He told readers that free speech “now mostly protects corporate interests” and threatens “essential jobs of the state, such as protecting national security and the safety and privacy of its citizens.”

Walz said in the debate that Vice President Harris is promoting the “politics of joy.” Indeed, the wrong people are perfectly ecstatic. Harris and Walz are the dream team for the anti-free speech movement.