A Vice Presidential Debate Reminder: Vote for Kamala Harris to Protect First Amendment Free Speech Rights

Don't be Fooled by the Rhetoric

Last Wednesday, libertarian leaning Reason magazine re-published How to Yell ‘Fire’ in a Crowded Theater by Jeff Kosseff.¹ This really well-written article dispels a common myth about the First Amendment that many people cite to as a reason to ban or punish speech they dislike. I highly recommend it to all my subscribers.²

Reason apparently republished this article in response to Tim Walz who in last Tuesday night’s Vice Presidential debate, repeated the well-known “you can’t yell fire in a crowded theater” line.

Trump supporters are using Walz’s legal misstatement to argue that Kamala Harris is a pro-censorship candidate. A number of very loud and prominent pro-Trump liberals - journalist Matt Taibbi journalist Michael Shellenberger, author Anne Bauer, author Walter Kirn, former Levi Strauss Chief Executive Officer Jennifer Sey, and Twitter and Tesla owner Elon Musk - among others - have frequently made this argument.

Now, as comedian Jon Stewart pointed out, the argument that a vote for Trump is a vote against censorship is bizarrely divorced from reality because Donald Trump openly calls for censorship of speech he dislikes and the criminal and civil punishment of those who say things he dislikes.³ Meanwhile, right wingers criticize Kamala Harris for eloquently defending First Amendment rights.⁴

When Walz previously used the “fire in a crowded theater” line in a news interview to call for banning so-called “misinformation”, I acknowledged that what Walz said is technically incorrect as a matter of constitutional law.

That said, as a strong First Amendment defender, I used the occasion of Walz’s legal misstatement to argue that those who value protecting free speech rights under the First Amendment should vote for Kamala Harris. As polling expert

Nate Silver

recently tweeted, support for free speech and opposition against censorship shouldn’t be a “right-coded value.”⁵

And one reason I highly recommend Jeff Kosseff’s article in Reason is that even though it does not argue for voters to vote for Kamala Harris (for all I know, he’s a Trump voter), the article emphasizes case law that should leave no doubt in the minds of First Amendment defenders that they need to vote for Kamala Harris.

That’s because Kosseff’s article focuses on just a few key United States Supreme Court cases where the Court stopped efforts to turn disliked speech into unprotected speech and re-affirmed the First Amendment’s strong protection. These cases are United States v. Stevens,⁶ Hess v. Indiana,⁷ New York Times v. Sullivan,⁸ United States v. Alvarez,⁹ and Brown v. Entertainment Merchant’s Association.¹⁰

These cases, if you are not familiar, are some of the First Amendment precedents that make current proposals to censor so-called “misinformation” and “disinformation” unconstitutional.

A quick review of each case demonstrates how:

• United States v. Stevens. In an 8-1 decision, the Court reversed the conviction of a man for depicting animal cruelty.¹¹ As the Court explained: “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”¹²

• United States v. Alvarez. The Court struck down the federal Stolen Valor Act.¹³ This case confirmed one’s protected First Amendment right to make false statements when they are not part of a larger criminal scheme.¹⁴

• Hess v. Indiana. The Court reversed the convictions of anti-Vietnam War college protesters for incitement to violence on First Amendment grounds.¹⁵ In Hess, the Court demonstrated that it would not allow incitement convictions for merely saying things that offended other people or made others feel uncomfortable.¹⁶

• Brown v. Entertainment Merchant’s Association. The Court struck down California’s law prohibiting the sale of violent video games to minors as a violation of the First Amendment.¹⁷ While the California State Legislature had grafted the standard for obscenity (unprotected speech under the First Amendment) onto depictions of violence, the Court rejected this effort to expand censorship.¹⁸

• New York Times v. Sullivan. This case established the First Amendment actual malice standard that public officials are held to when they file defamation lawsuits for false statements - the person who makes the statement must know that they are false or make them with reckless disregard for the truth.¹⁹

These key First Amendment precedents are why the government cannot simply prohibit information that it deems to be “misinformation” or “disinformation”. It’s why even though I’ve been angered and disgusted by Republican conspiracy rhetoric during COVID-19 and in support of Trump, I have defended the constitutional right of people to express these views, choosing to fight bad speech with more good speech.²⁰

However, as should be clear from the legal battle over abortion, these First Amendment precedents are not full-proof.

For years, pro-choice Republican voters insisted that it was fine to vote Republican for President because Roe v. Wade would never be overturned. I still remember the friends of mine who would loudly and authoritatively repeat the words “Stare decisis!”

But now we know:

1. If ideologically motivated Justices with little respect for the rule of law and following precedents are appointed to the Court, they can easily discard legal precedents they dislike.

2. Presidential elections are important to the outcome of constitutional law cases. Sadly, because of the success of the extremely radical right wing Federalist Society and other right wing groups, Republican Presidents will only appoint judges and Justices who will follow the party line on key issues rather than adhere to pre-existing law.

This is why it is important for voters to understand the difference between how conservative Justices and liberal Justices on First Amendment issues.

Here, many might not realize because of the current political rhetoric. Ultra-woke progressive social justice warriors are often calling for censorship of speech they deem to be “harmful”. While frequently calling for censorship, Republicans are often claiming to be defenders of free speech while some Democrats (who should really know better) extoll the need for censorship.

I suspect that if you asked Bill Maher to choose between Justice Samuel Alito and Justice Sonia Sotomayor for which Justice would best protect his First Amendment rights against woke social justice warriors, he’d almost certainly say Justice Alito.

I suspect many Americans would probably agree.

Justice Alito is the conservative George W. Bush appointment who the decision overturning Roe v. Wade. His wife flies the upside down Trump flag at their home. Justice Sotomayor is the liberal Bronx born and raised Barack Obama appointment who is the first Latina to ever serve on the Supreme Court.

Surely, if one was prosecuted for a “hate speech” law enacted in a deep blue state and given a choice of which judge would hear their case, most Americans would choose Justice Alito over Justice Sotomayor.

But that would be a massive mistake.

Why? Because Justice Samuel Alito has expressed the view that homophobic hate speech should not be subject to First Amendment protection from civil lawsuits.²¹ He has made clear that he believes that speech that disgusts or offends, including racist and sexist hate speech, can be banned under the First Amendment.²²

Meanwhile, Justice Sotomayor is consistently one of the strongest defenders of free speech rights.²³ She has joined opinions that forcefully defend the First Amendment’s protection of hate speech.²⁴ She even cites favorably to cases regarding the First Amendment protection of cross-burning²⁵

Evaluating the important First Amendment cases cited by or indirectly referenced by Kosseff in his Reason article demonstrate the partisan breakdown:

• United States v. Stevens. In this 8-1 decision, which lone dissenting Justice believes in free-floating tests by the courts to determine whether there are new categories of unprotected speech under the First Amendment? Justice Alito.²⁶

• United States v. Alvarez. Justice Ruth Bader Ginsburg and Justice Sotomayor joined the plurality opinion to strike down the Stolen Valor Act. Democratic appointments, Justice Stephen Breyer and Justice Elena Kagan, concurred in the judgment.²⁷ Justice Samuel Alito, joined by conservative heroes Justice Antonin Scalia and Justice Clarence Thomas, dissented, arguing that false speech, in and of itself, can be criminalized if the government decides it’s really bad.²⁸

• Hess v. Indiana. Justice William Rehnquist, a conservative Republican appointment of President Richard Nixon, who later was elevated to Chief Justice by President Ronald Reagan, dissented.²⁹ He argued that if there were multiple possible interpretations of statements, a court could assume a threatening interpretation to restrict First Amendment rights.³⁰ Chief Justice Warren Burger and Justice Harry Blackmun, both fellow Richard Nixon appointments, joined Justice Rehnquist’s dissent.

• Brown v. Entertainment Merchant’s Association. In an opinion garnering a bare 5 Justice majority of the Court, Justice Ginsburg, Justice Sotomayor, and Justice Kagan all joined the majority opinion. Justice Thomas dissented on the grounds that children have no First Amendment rights.³¹ While agreeing that the statute was unconstitutional, Justice Alito, joined by Chief Justice John Roberts, strongly disagreed with the majority opinion’s rationale and advocated for more deference to government censorship when dealing with new forms of technology.³²
  
  This holding is relevant to current legal battles involving the First Amendment. Just this week, Gavin Newsom’s prized legislation to prohibit AI parodies he personally dislikes was preliminarily enjoyed by the United States District Court, which cited to Brown v. Entertainment Merchant’s Association in its decision.³³ However, had Justice Alito’s opinion been controlling, Gavin Newsom’s law might still be in effect.

• New York Times v. Sullivan. One current Supreme Court Justice is on record of wanting to overturn this unanimously decided case and make it easier for politicians to sue constituents for defamation when those constituents trigger them with criticism. Who is that Justice? Justice Thomas.³⁴

If there is nothing else that you take away from this analysis, when it comes to protecting free speech, know that conservative Justices appointed by Republican Presidents are not your friend while liberal Justices appointed by Democratic Presidents are.

This is true even in instances where applying First Amendment benefits Republicans.

One case that stands out in proving this point is one that was not decided by the Supreme Court but the 9th Circuit Court of Appeals, United States v. Bagdasarian.³⁵

There, a man was convicted under the federal criminal statute prohibiting threats against Presidential candidates because he posted several statements on an online message board where he encouraged people to shoot Barack Obama, who he referred to using the n-word.³⁶

In an opinion authored by one of the Court’s most infamously liberal members, Judge Stephen Reinhardt, the 9th Circuit reversed, holding that the statements were protected speech under the First Amendment.³⁷ While the Court referred to the defendant as an “especially unpleasant fellow”, his party affiliation was ultimately secondary to the the importance of the law.³⁸

That’s not unusual. In a landmark First Amendment case brought by Republican public employees fired by a newly elected Democratic County Sheriff, the Democratic Justices³⁹ held that the First Amendment protected their jobs.⁴⁰ Not the Republican ones.⁴¹

This analysis might lead to a question. Why are so many Trump supporters arguing that a vote for Trump is a vote against censorship?

Quite simple. Their goal is to persuade voters who dislike Trump but value the First Amendment to vote for him or at least not vote for Kamala Harris. When Tim Walz demonstrates that he is unfamiliar with Brandenburg v. Ohio,⁴² which governs current incitement law, it creates an opportunity.

While most political analysts would agree that the number of voters who deeply care about Brandenburg is rather small, they could still make a decisive difference in a very close election.

The First Amendment issue is also different from other legal areas that might motivate voters to vote one way or another.

Voters generally understand that a Republican President will appoint pro-life and anti-LGBT Justices to the Supreme Court. Conversely, voters generally understand that a Democratic President will appoint Justices who favor protecting abortion rights and LGBT rights.

For some voters, these issues are so fundamental that they will over-ride all other issues and even their personal feelings about Presidential candidates. But these voters understand which Presidential candidate they need to vote for.

However, on the issue of the First Amendment, many voters might not be fully aware. They might be inclined to vote against their own interests just due to current narratives and a lack of robust information by news sources they might trust.

Trump supporters are taking full advantage to manipulate voters into voting for Trump or simply not voting for Kamala Harris. While one could term this “misinformation”, it is constitutionally protected speech.⁴³

However, your ability to inform other voters about the truth about the First Amendment is also constitutionally protected.⁴⁴ And you should exercise your constitutional right to make sure that voters you know who prioritize the First Amendment’s protection vote for Kamala Harris.

1. I cannot appear to find a Substack page for Jeff Kosseff. However, he has appeared on several podcasts of other Substack publications including

So to Speak

,

The Compleat Nick Gillespie

,

Public

, and

Keen On

.

2. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.

3.

4. https://www.foxnews.com/politics/harris-dodges-answering-whether-athletes-should-stand-during-national-anthem-unearthed-interview

5. https://x.com/NateSilver538/status/1842007873569644583