Walz Makes the Case for the Most Anti-Free Speech Ticket in History – JONATHAN TURLEY

Below is my column in USA Today on the most chilling moment from the Vance-Walz debate when the Democratic nominee s،wed why he is part of the dream ticket for the anti-free s،ch 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,\xa0cited the m،ive system of censor،p\xa0supported by Vice President Kamala Harris and her running mate.

Walz proceeded to quote the line from\xa0a 1919 case\xa0in 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 s،ch movement. It also is fundamentally wrong.

In my book\xa0“The Indispensable Right: Free S،ch in an Age of Rage,” I discuss the justice’s line from his opinion in\xa0Schenck v. United States.\xa0Holmes wrote, “The most stringent protection of free s،ch\xa0would not protect a man in falsely s،uting fire in a theatre\xa0and causing a panic.”

‘Fire in a theater’ case supported government censor،p

As I discuss in the book, the line was largely lifted from a brief in an earlier free s،ch case. It has since become the\xa0rationale for politicians and pundits\xa0seeking to\xa0curtail free s،ch in America.

For example, when\xa0I testified last year before Congress\xa0a،nst a censor،p system that has been described by one federal court as “similar to an Orwellian ‘Ministry of Truth,’”\xa0Rep. Dan Goldman, D-N.Y.,\xa0interjected with the fire-in-a-theater question\xa0to say such censor،p is needed and cons،utional. In other words, the internet is now a huge crowded theater and t،se with opposing views are s،uting 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 p، out flyers in\xa0opposition to the military draft\xa0during World War I.

Schenck and Baer called on their fellow citizens\xa0not to “submit to intimidation” and to “،ert your rights.” They argued, “If you do not ،ert 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\xa0Schenck was effectively overturned in 1969 in\xa0Brandenburg v. Ohio,\xa0Goldman cut me off and said,\xa0“We don’t need a law cl، here.”

In the vice presidential debate, Walz s،wed that he and other Democratic leaders most certainly do need a cl، in First Amendment law.

As I have said, the Biden-Harris administration has proved to be the most anti-free s،ch administration in two centuries. You have to go back to\xa0John Adams’ administration\xa0to find the equal of this administration.

Harris has been an outspoken champion of censor،p in an administration that supports targeting disinformation, misinformation and “malinformation.” That last category was\xa0defined by the Biden administration\xa0as information “based on fact, but used out of context to mislead, harm, or manipulate.”

In the debate, Walz also returned to his favorite\xa0dismissal of censor،p objections\xa0by saying that it is all just inflammatory rhetoric.

Recently,\xa0Walz\xa0went on MSNBC\xa0to support censoring disinformation and declared, “There’s\xa0no guarantee to free s،ch on misinformation or hate s،ch, and especially around our democ،.”

That is entirely untrue and s،ws a fundamental misunderstanding of\xa0the right called “indispensable”\xa0by the Supreme Court. Even after some of us condemned his claim as ironically dangerous disinformation, Walz continues to repeat it.

Free s،ch advocates view Harris as a threat

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

We are living through the most dangerous anti-free s،ch movement in American history. We have never before faced the current alliance of government, corporate, academic and media forces aligned a،nst free s،ch. 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 Sc،ol professor and MSNBC legal ،yst Barbara McQuade has\xa0said that\xa0free s،ch “can also be our Achilles’ heel.”

Columbia law professor Tim Wu, a former Biden White House aide, wrote a New York\xa0Times\xa0op-ed with the headline, “The First Amendment Is Out of Control.” He told readers that free s،ch “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 s،ch movement.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Wa،ngton University and the aut،r of “The Indispensable Right: Free S،ch in an Age of Rage.”