Misinformation

“Only the mob and the elite can be attracted by the momentum of totalitarianism itself; the masses have to be won by propaganda. Under conditions of constitutional government and freedom of opinion, totalitarian movements struggling for power can use terror to a limited extent only and share with other parties the necessity of winning adherents and of appearing plausible to a public which is not yet rigorously isolated from all other sources of information.” Hannah Arendt, The Origins of Totalitarianism

This quote by Hannah Arendt, an historian and political scientist, is based on observation; it’s empirical, not theoretical, because it’s from the author’s experience, and all too often a matter of historical record. For Americans to think “It can’t happen here!” (actually the title of a dystopian novel by Sinclair Lewis) is foolish, as it has and is happening again. While the US is a “…constitutional government…” and we have freedom of speech, we also have political ideologies that threaten our access to other sources of information that may be contrarian and therefore labeled as “misinformation”.  

There was a news clip recently of Tim Walz expounding on free speech that, “There’s no guarantee to free speech on misinformation or hate speech, and especially around our democracy.” Misinformation is defined as unintentionally false information. Then we have “disinformation” which is defined as intentionally false information. Hate speech is a very ambiguous term with no consistent definition as hate is an emotion that can be based on facts or falsehoods. For Walz to further qualify that these forms of speech especially do not belong in a democracy is contrary to what a free society is all about.

To identify something as misinformation would require infallible knowledge about what was said, and hate speech is in the ear of the listener. For speech to be considered unprotected, the Supreme Court established the Brandenburg Test in the 1969 case Brandenburg v. Ohio, which requires that the speaker must intend to incite or produce imminent lawless action, and the speaker’s words or conduct must be likely to produce such action. Trump’s speech just prior to the January 6^th riots at the Capitol could qualify under the Brandenburg Test, as could the riots with the Pro-Palestinian Protests if intent could be established. Intent is extremely difficult to prove because it is a state of mind which only the speaker can expose by their own admission.

Walz’s statement about free speech is an ominous one coming from the VP candidate of a major American political party, and displays either a willful ignorance of our constitution, or just plain ignorance about our most indispensable right. The most controversial issue concerning many delegates to the Constitutional Convention was the absence of a Bill of Rights; not until such a bill was agreed to would they sign, although some still refused. That bill constituted the first ten amendments which included an unequivocal guarantee for freedom of religion, speech and the press. One of the most controversial Justices on the Supreme Court was Oliver Wendell Holmes Jr. who said, “We should be eternally vigilant against attempts to check the expression of opinions that we loathe.” Unfortunately, he was not faithful to his own words in the 1919 case Schenck v. United States in which Schenck was found to have violated the Espionage Act of 1917 by speaking and writing against the US entrance in the Great War. Holmes came up with the egregious “clear and present danger”, and the “bad tendency” tests; although these were not fully adopted, they became important legal concepts in First Amendment law until the 1969 case Brandenburg v. Ohio, where they were thankfully discarded.

Back in April 2022, the Department of Homeland Security announced the creation of the “Disinformation Governance Board”, perhaps one of the most egregious threats to the First Amendment since the Espionage Act of 1917 and the Sedition Act of 1918; its comparison to Orwell’s “Ministry of Truth” in his dystopian novel 1984 was so apparent that the DHS was understandably embarrassed and had to dissolve it the following August. Don’t be fooled that this suppression of free speech is limited to any one political party as there are many Republicans who, during the course of the various House and Senate committee hearings on tech companies, and their support for recent state government book bannings, have shown themselves to be just as much a “clear and present danger” to free speech as their Democratic colleagues; clearly hypocrisy is a non-partisan trait.

“Free speech is my right to say what you don’t want to hear.” George Orwell