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Freedom of Speech: Tyranny’s Greatest Enemy (and Why We Should Care)

Casey Norman
Litigation Counsel

October 6, 2023

“In nonsense is strength.”[1] These are Kurt Vonnegut’s words, but they also happen to be the message that the U.S. federal government sends to its citizens with each unapologetic justification of its ongoing efforts to censor First Amendment-protected speech.  As we’ve seen from the Twitter Files and cases like Missouri v. Biden and Dressen v. Flaherty, according to the federal government, shielding Americans from mis-, dis-, and malinformation (i.e., censorship of content and viewpoints that are unaligned with the government’s preferred narrative and policies) is for our own good—the implication being that American citizens, haplessly naïve and childlike as we are, require protection from thoughts and ideas, which must be carefully filtered by the government-guardian before reaching our eyes and ears.

Unable to do away with the First Amendment altogether, however, the government appears intent on modifying the perception and role of free speech in our social and constitutional system.  Indeed, the government increasingly treats free speech not as an immutable right and precondition for self-government, but instead as something dangerous that must be curated and contained for the sake of “public safety and welfare.”

Rather than protecting Americans from the government, in a nonsensical flipflopping of First Amendment precepts, the government has even recently argued that the protection of government speech—at the expense of the speech of American citizens—is one of the First Amendment’s “fundamental principles.”[2]

The government employs both fear (e.g., social media platforms are “killing people” by failing to censor speech that questions the covid vaccine) and misinformation (e.g., government speech is one of the First Amendment’s primary purposes—including when used to suppress the speech of American citizens) to render the public more compliant and willing to sacrifice freedoms in exchange for ostensible security.  And, as Vonnegut put it, when society loses its grasp on free speech and independent thought, individuals become “agreeing machines instead of thinking machines.”

The government may wish that it were worded otherwise for censorship purposes, but the First Amendment is explicit: “Congress shall make no law…abridging the freedom of speech.” U.S. Const. Amend. I.  Hence, any law or policy that merely “abridges” or reduces protected speech (i.e., all speech excluding only “well-defined and narrowly limited” exceptions, such as fraud, defamation, and incitement to violence) violates the First Amendment.  The federal government cannot play any role in policing private speech or picking the winners and losers in the marketplace of ideas.  And this certainly includes the government wielding its own speech to coerce and encourage private entities to suppress disfavored viewpoints and content at the government’s behest—a feat that the government could never lawfully accomplish alone.

The federal government’s manipulation and distortion of the First Amendment is chilling (in all senses of the word) and poses a threat to the sovereign rights of every American.  Without free speech, there is no self-governance.  This nation was devised so that, in the end, it is “We the People” who rule and to whom the government is ultimately accountable.  However, when denied the ability to freely communicate, seek and receive ideas, and independently form our own thoughts without government influence, we lose our sovereignty and instead become subjects.

We would do well to remember that it is the First Amendment that secures us against government—not the other way around.

[1] Kurt Vonnegut, Breakfast of Champions (1973).

[2] The government defendants in Missouri v. Biden petitioned the Supreme Court for a stay of a preliminary injunction, which, as modified by the Fifth Circuit Court of Appeals, would prohibit the government defendants from taking any action—whether formal or informal, directly or indirectly—to coerce or significantly encourage social media companies to take any action that would result in the censorship, suppression, or reduction of protected free speech.  In its stay petition, the government contends that the Fifth Circuit’s decision prohibiting it from coercing or significantly encouraging social media platforms to censor and suppress free speech “contradicts fundamental First Amendment principles,” such as the government’s entitlement to speak and to “advocate and defend its own policies.”