Weekend reads: Greg Lukianoff on how Tim Walz got free speech very wrong

There is no hate speech exception, government must not be the arbiter of truth, and you CAN shout fire in a crowded theater

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For many of us who follow free speech issues, Tim Walz’s remarks on state censorship during this week’s Vice Presidential Debate proved deeply disturbing. At Lean Out, I frequently host guest essays from writers I admire — and so this is the perfect week to bring you commentary from a prominent defender of free speech, Greg Lukianoff, who’s been on podcast twice in the past.

Greg Lukianoff is an attorney, and the President and CEO of the Foundation for Individual Rights and Expression (FIRE). He’s also the co-author of The Coddling of the American Mind and The Canceling of the American Mind.

In this excellent essay, originally published at his Substack, Greg walks us through how Tim Walz got free speech very wrong. — TH

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When you’ve been defending free speech as long as I have, you’ve heard every bad argument against it about a billion times. And while FIRE and I have responded to these anti-free speech arguments repeatedly over the years, some of them are tougher to kill than a tardigrade. No matter how many times they are rebutted, they just keep coming back up.

In the span of about 30 seconds during the Vice Presidential Debate, Minnesota governor and Democratic candidate Tim Walz managed to bring up the top three:

Here’s a quick rundown of what he said and why it’s dead wrong.

1. There is no ‘hate speech’ exception to the First Amendment

“You yourself have said,” Republican vice presidential candidate JD Vance said to Walz during the debate, “There’s no First Amendment right to misinformation.”

Walz didn’t refute Vance’s comment. In fact, he seemed to confirm it by adding “Or threatening, or hate speech” as examples of further exceptions to First Amendment protections. This is in keeping with Walz’s statements during an MSNBC interview with Joy Reid in 2022, where he said “There’s no guarantee to free speech on misinformation or hate speech.”

Let’s get the easy bit out of the way. The First Amendment does not protect “true threats,” which were defined by the Supreme Court in the 2003 case Virginia v. Black as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

Assuming Walz’s idea of “threatening” comports with this definition, he’s correct there. Unfortunately, he’s very wrong on the rest.

“Hate speech” has been the greatest marketing success of the anti-free speech movement, making people think that the First Amendment does not and should not protect speech that is “hateful.” After all, nobody likes hate, right? The problem, of course, is that what is considered “hateful” is incredibly subjective, and labeling certain speech “hate speech” is and has been little more than an excuse to go after opinions we don’t like.

What’s more, even if there were laws against hate speech, they would only make matters worse. One of the most famous canards on this topic is what we call the “Weimar Fallacy,” which argues that if only there were hate speech laws in Weimar Germany, Hitler may never have risen to power. Well, there actually were hate speech laws (in the form of laws against “criminal insult” or incitement to violence against “classes”) back then, and they were enforced against Hitler, Joseph Goebbels, Theodor Fritsch and Julius Streicher. Not only did these laws not stop the ascension of the Nazis, they actually aided it. FIRE Senior Fellow and former ACLU president Nadine Strossen breaks it down in this fantastic video:

This kind of thinking has also been a disaster on campus, as my colleague Adam Goldstein and I recently pointed out in our piece about North Dakota State University’s American College Student Freedom, Progress and Flourishing Survey. Let’s go over the data again, because it’s sadly worth repeating:

• A third of students said a professor should be reported for saying there was no evidence of anti-black bias in police shootings — which reminded us of Roland Fryer, the Harvard economist canceled for publishing a study of police violence that said, in officer-involved shootings, there were “no racial differences in either the raw data or when contextual factors are taken into account.” It should be noted that this was not the outcome Fryer himself expected when he started researching the topic.

• A quarter of students said a professor should be reported for saying that requiring a COVID vaccination is an assault on individual freedom. Stanford’s Jay Bhattacharya was someone who was targeted for his position on mask mandates, but he would go on to question the efficacy of the vaccine mandates as well.

• More than one in five students said a professor should be reported for saying that biological sex is a scientific fact. Carole Hooven’s experience at Harvard shows that very intention in action.

• Just under one in five students said a professor should be reported for saying that affirmative action is doing more harm than good. Associate professor of Cardiology Norman Wang from the University of Pittsburgh had his teaching privileges revoked for publishing a research paper studying that question, and University of Chicago Associate Professor of Geophysics Dorian Abbot was disinvited from an MIT lecture for having expressed that view in an op-ed.

FIRE and I have argued time and time again that there is no free speech exception for “hate speech.” Indeed, many cases, including Snyder v. Phelps in the Supreme Court and National Socialist Party of America v. Skokie in federal court, have made clear that the First Amendment protects speech even when it is considered hateful.

This anti-free speech argument may refuse to die, but it’s not because it has any merit whatsoever.

2. Misinformation and disinformation are protected speech — and should stay that way

Walz’s idea that the First Amendment doesn’t protect “misinformation” is also patently false.

As we’ve explained before, “misinformation” is another word for falsehoods that are spread unintentionally. This is distinct from “disinformation,” which is the word for falsehoods that are intentionally spread — otherwise known as lies.

And as we’ve also explained before, the vast majority of lies and falsehoods are protected speech, which is a very good thing. If the government is given the power to determine what is and is not misinformation or disinformation, free speech is dead.

In his fantastic book “Kindly Inquisitors,” Jonathan Rauch points out that giving special authority to any individual or group of individuals to end arguments goes against liberal science. And that is exactly what outlawing “misinformation” would do. The biggest realization of the Enlightenment (which is better thought of as the discovery of our ignorance), is that the truth is extremely hard to know. It takes an arduous and never-ending process to even attempt to do so, and we often fail. The government may want omnipotence, but even if they had it, they would still not be omniscient. And that makes any omnipotence they might gain dangerous.

Contrary to how proponents of granting First Amendment exceptions for “misinformation” and “disinformation” like to frame it, these are not easily discernible or definable categories. Rather, they are an exception that swallows the rule of free speech. They allow for virtual omnipotence on the part of government to determine what is and is not true — and therefore what you and I are allowed to see, read, and hear. This grants them immense power, which they will of course abuse to suit their own purposes and biases. You need only to look at some of the bad calls made during the COVID-19 pandemic to see the potentially disastrous drawbacks of this idea. 

3. Yes, you can yell ‘Fire’ in a crowded theater.

Walz’s last comment on this during the debate is one of the most popular and enduring defenses of limiting expression, and one of the most frustrating for those of us who know anything about how free speech and the First Amendment actually work: “You can’t yell ‘Fire’ in a crowded theater.”

Yes, Governor Walz, you actually can — as many people, including Christopher Hitchens, have literally demonstrated.

What you can’t do is “falsely shout fire in a theatre and cause a panic.” The emphasis is mine, but the quote comes from an analogy that Supreme Court Justice Oliver Wendell Holmes made in the 1919 case Schenck v. United States.

The most irritating thing about this quote is that the parts I emphasized above are often omitted, but they’re the most important because they illustrate the context of the speech in question. The idea is not that the word “fire” is forbidden in a crowded theater, but rather that attempting to incite behavior that will cause people harm (like, you know, making them think there’s a fire and causing them to freak out and stampede) is not protected speech, and actually falls under the very clearly-defined exception to First Amendment called “Incitement to imminent lawless action.”

Still, there’s even more context that makes this particular cliché irritating to encounter. Holmes’ Supreme Court opinion was one that upheld the imprisonment of two people who argued that military conscription was wrong. The Court justified the ban with Holmes’ dubious analogy, which was meant to tie back to the principle that the First Amendment doesn’t protect speech that incites people to physical violence. 

But the Supreme Court abandoned the logic of that case in 1925, and rightly seeing that this line of thinking was being used to justify clearly unconstitutional censorship, outright overruled it in 1969. And yet, the cliché endures, even in the mouths and minds of a candidate for the nation’s second-highest office in 2024.

SHOT FOR THE ROAD

FIRE Legal Director Will Creeley quite succinctly (and entertainingly) put the “fire in a crowded theater” argument to bed in a great FIRE video from back in July, and I think it caps this whole thing off nicely: