If you Care About Protecting the First Amendment, You Should Vote for Kamala Harris

First Amendment Defenders Should Worry About What Kinds of Justices Will be Appointed to the Supreme Court, not Tim Walz's Individual Knowledge of Constitutional Law

Last Wednesday during a news interview, Minnesota Governor and Democratic Vice Presidential nominee Tim Walz, who is not a lawyer (and does not play one on television), authoritatively pronounced “There’s no guarantee to free speech on misinformation or hate speech and especially around our democracy”.

Many commentators, who are strong First Amendment defenders, swiftly condemned Walz’s comments and questioned his qualifications.

While I’m voting for Kamala Harris (and will be doing so while unapologetically wearing my “White Dudes for Harris” t-shirt), I can say, as a matter of constitutional law, that what Governor Walz said is inaccurate.¹ I don’t mind saying so as I belong to the Democratic Party, not a cult.

However, if anything, Governor Walz’s inaccurate statement about the First Amendment has filled me with even more resolve to elect Kamala Harris our next President. And if protecting free speech rights are your top priority as a voter, you should join me in voting for Kamala Harris.

I. Why is Tim Walz Wrong?

Despite common misperception, there is no such thing as a “hate speech” exception or “misinformation” exception to the First Amendment.²

Under the First Amendment:

• Offensive speech is protected free speech.³

• Violent speech is protected free speech.⁴

• Vulgarity and crude speech are protected free speech.⁵

• Indecent speech is protected.⁶

• Speech celebrating violence against others is protected free speech.⁷

• Speech that can be interpreted as promising illegal violence at a future time is protected free speech.⁸

• Speech where one publicly threatens to take the life of the President of the United States if they ever get the opportunity is protected free speech.⁹

• Hateful and bigoted speech is protected free speech.¹⁰

• Anti-Semitic speech is protected free speech.¹¹

• Racist speech is protected free speech.¹²

• False and misleading speech is protected speech.¹³

While there are some categories of constitutionally unprotected speech like criminal threats or incitement to criminal violence, the First Amendment still requires strict safeguards in prosecutions for those acts.¹⁴

Those few times that false statements are criminalized are when those statements are part of a larger criminal scheme like fraud.¹⁵ The crime of criminal incitement does not depend upon how hateful or awful the remarks are.¹⁶

Unprotected categories of speech do not provide a free-for-all for the government to label speech it dislikes as a “threat” or “incitement” in order to ban it or otherwise penalize it.¹⁷

The First Amendment is enforced this way in order to protect our system of law and our free society.¹⁸

II. Many Liberals Value First Amendment Protected Free Speech

In a recent Substack article, My Resignation Letter, about why she was leaving the Democratic Party to become an independent even though she remains opposed to Donald Trump, the ever brilliant

Lisa Selin Davis

explained:

I wanted us to reclaim the American flag, to embrace patriotism, to value free speech again, to see that, no matter how we deride our own country as racist and transphobic, millions and millions of people try to bust their way in every year, because there is still something beautiful beneath all the fighting—the first amendment, for instance: a crown jewel.

While I’m not leaving the Democratic Party any time soon, as a fellow liberal, I share Selin Davis’s views on the First Amendment. I am a First Amendment purist and I worry when I see movements designed to restrict First Amendment free speech protections. Moreover, I dislike it when politicians and activists breathlessly repeat incorrect statements of law about the First Amendment.

I share Selin Davis’s dismay when I watch people on my own Democratic side express a desire to disregard decades of well-settled precedent. In recent years, numerous progressive social justice warriors, college campus DEI officers, and ultra-woke social media influencers have called for the government to restrict and even criminalize speech that they dislike because they view it as “hateful” or “false”.

But the desire to limit speech is not just limited to those on the left. Although denouncing “cancel culture”, Republican Governors have rushed to restrict the free speech rights of those protesting against Israel and restrict rights to put on drag shows (which is also an equal protection violation).

It’s not hard to imagine living under laws that criminalize speech for being “hateful” or “false”. We witness it in otherwise civilized and advanced democracies abroad.

In Canada, Australia, and the United Kingdom, we frequently see frightening Orwellian restrictions of speech.¹⁹ In response to recent race riots in the United Kingdom, their government has promised to pursue “online violence” and has arrested people for tweeting things that it disliked.²⁰

What is perhaps the most frightening is that there are Americans who look at what is occurring in the United Kingdom and enthusiastically declare, “What a great policy! We should do that too!”

Given the ever-present desire of those in power to control the speech and thoughts of other people, the role of our court system in protecting First Amendment rights is more important than ever.

III. We Cannot Rely on Current Case Law to Protect Americans

It’s honestly not enough to simply cite existing case law to declare that a proposal to restrict free speech rights would violate the First Amendment. Courts have not always protected free speech rights under the First Amendment as they should have.²¹ And there is always a risk of a return to previous eras of court-sanctioned government censorship.

After all, until two years ago, longstanding constitutional doctrine protected a woman’s right to choose. But after the Republican Party packed the Supreme Court with anti-abortion ideologues for the very purpose of getting rid of this fundamental right, what was once a constitutional right was taken away.

The same could easily happen with hard-fought First Amendment rights.

Understandably, a strong supporter of free speech might hear Tim Walz’s inaccurate statement and feel dissuaded from voting for Kamala Harris.

However, what Tim Walz knows or does not know about the Constitution is not relevant to the protection of First Amendment rights. Vice Presidents are not arbiters of constitutional law.²² Judges, however, are.²³

Thus, First Amendment defenders need to consider what kind of Justices that President Kamala Harris would appoint to the United States Supreme Court.

If elected President, Kamala Harris would very likely appoint Justices in the ideological mold of Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor as opposed to Justices in the ideological mold of Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Comey Barrett.

IV. Liberal Justices are the Most Protective of First Amendment Free Speech Rights²⁴

Justice Ruth Bader Ginsburg (known to some fans as the “Notorious RBG”) provides a prime recent example.²⁵

While serving on the Court between 1993 and 2020, Ruth Bader Ginsburg joined the majority or plurality of nearly every single Supreme Court decision that protected, defended, or advanced First Amendment rights.²⁶ That includes cases where the Court protected the First Amendment rights of “hate speech” and misinformation.²⁷ In cases restricting First Amendment rights, she joined almost every single dissent.²⁸

That meant defending the right of speech she probably didn’t care for. For example, Justice Ginsburg, a lifelong feminist, dissented when the Court upheld restrictions on topless dancing and strip clubs against First Amendment challenges.²⁹

It’s honestly a tradition of the liberal Justices.

When KKK members were convicted for holding a rally where they burned a cross and used the n-word while calling for the deportation of all Blacks to Africa, Justice Thurgood Marshall - the first Black Justice to ever serve on the Supreme Court and the chief lawyer who argued most of the leading cases against racial segregation - joined the opinion that set them free.³⁰

Although newer to the Court, the records of Justices Sonia Sotomayor and Elena Kagan are similar. In 2023, a Supreme Court decision expanded First Amendment free speech rights by requiring a subjective standard of intent when prosecuting an individual for making criminal threats.³¹

Justice Kagan authored the majority opinion. Justice Sotomayor concurred only part way because she felt that the decision did not go far enough in protecting individual First Amendment rights.³² Both opinions made clear that under the First Amendment, the government cannot engage in its own “cancel culture” and outlaw speech that it finds offensive.³³

Who dissented?

Trump appointed Justice Amy Coney Barrett, who has a far more restrictive view of the First Amendment.³⁴ She was joined by Justice Clarence Thomas who wrote his own dissent to suggest that the landmark 1964 First Amendment case, New York Times v. Sullivan,³⁵ should be overturned.³⁶

For those who are unfamiliar, New York Times v. Sullivan established the modern standard - knowledge that the statement was false or made with reckless disregard of the truth- for proving defamation cases brought by public figures.³⁷ It is considered one of the greatest triumphs for protecting free speech in this country’s history.

A recent concurrence demonstrates that the liberal wing of the Court remains the most protective of the First Amendment.

In 2017, the Supreme Court struck down a federal law prohibiting the trademarks of names that were considered racist or otherwise offensive.³⁸ This is literally the very definition of hate speech (disparaging racial minorities).

In a concurrence in the judgment that explained the importance of First Amendment protected hate speech, Justice Anthony Kennedy wrote:

The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing. An initial reaction may prompt further reflection, leading to a more reasoned, more tolerant position.

Indeed, a speech burden based on audience reactions is simply government hostility and intervention in a different guise. The speech is targeted, after all, based on the government’s disapproval of the speaker’s choice of message. And it is the government itself that is attempting in this case to decide whether the relevant audience would find the speech offensive. For reasons like these, the Court’s cases have long prohibited the government from justifying a First Amendment burden by pointing to the offensiveness of the speech to be suppressed.³⁹

He concluded:

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.⁴⁰

The preceding paragraphs are the antithesis of wokeness. After all, ask any “Queers for Hamas” t-shirt wearing, ultra-woke, progressive college student, Tik Tok influencer, or DEI consultant: forms of purely verbal communication that they dislike can be “literal violence”. This is why they advocate for “safe spaces” and “trigger warnings” while railing against “microaggressions”.

However, there are many liberals, whether still in the Democratic Party or now outside of it like Selin Davis, who likely agree with the preceding paragraphs and understand the importance of protecting speech that they absolutely abhor. Your stereotypical Bill Maher-watching liberal understands that it protects our own speech from censorship and also enables the conditions to break down bigotry and prejudice.

The politics here cannot be ignored.

Justice Kennedy was a conservative Ronald Reagan appointment to the Court. However, he broke from conservative tradition of favoring free speech restrictions in many (though certainly not all) cases through his 31 years on the Court.⁴¹

Today, Justice Kennedy would be considered too liberal to ever be appointed to the Supreme Court by a Republican President because he wrote or joined landmark opinions in favor of gay rights⁴², First Amendment protections of pornography,⁴³ and abortion rights.⁴⁴ He simply failed to be enough of a political activist and ideologue willing to cast aside law to engage in pure politics.

Given his relatively strong position on the First Amendment, it’s rather unsurprising to read an opinion from Justice Kennedy that smacked down the rationale behind the woke philosophy of restricting free speech.

But who else on the Court agreed with Justice Kennedy’s anti-woke viewpoint?

Did the other Republican appointed conservative Justices as media and popular culture might have you believe?

No. Not one of them signed on to Justice Kennedy’s opinion.

But who did join Justice Kennedy’s opinion?

Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan.

Their partisan affiliation and views on the speech itself notwithstanding, the liberal Justices - the ideological Justices who are appointed by Democratic Presidents - remain devoted to protecting free speech.

V. A Final Word

First Amendment defenders should consider strategy.

Regardless of Governor Walz’s statements, President Kamala Harris will appoint judges who will protect our First Amendment rights. A President Donald Trump or President J.D. Vance gives us no similar guarantee.

For me, the choice is simple. If the defense and protection of the First Amendment is of vital importance to you, you should vote for Kamala Harris.

1. 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.