Emerging threat to businesses’ free speech

Last week, we discussed work and purpose as key foundations for each of us.

This week, we discuss the freedom to discuss our own thoughts – a freedom that is foundational to our Republic’s viability and vitality. Unfortunately,  many now dismiss “threats” to the First Amendment as radical hyperbole, but we ignore this threat to our peril.

Looking around the country and the world, it’s clear the landscape has changed. The Free Press, a widely-followed news outlet founded by former New York Times opinion writer Bari Weiss, covered the global state of play this week.

Free speech may not be in any real immediate danger, but “Toto, I’ve a feeling we’re not in Kansas anymore.”

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Our system functions because of, not in spite of, the freedom to say and think what we please. The slope to a very dark alternate system is frighteningly short. It would probably look like this:

1. Congress and/or the judiciary carves out “misinformation and disinformation” free speech exceptions.
2. Government regulators decide what counts as misinformation and disinformation.
3. Government leaders manipulate definitions of misinformation and disinformation to achieve ulterior ends.
4. Dissidents face legal consequences for their beliefs and speech.

Other parts of the world seem to be slipping their way along that slope right now.

The United Kingdom’s government announced last month it’s planning to roll out a new policy to “crack down on those pushing harmful and hateful beliefs and violence.” Note that beliefs and violence appear next to one another as equals.

China-backed authorities in Hong Kong last week convicted two news editors of sedition for their coverage of pro-democracy protests. The judge ruled that editors and their news outlet “became a tool to smear and vilify” the Chinese government, the Wall Street Journal reported.

Brazil just outlawed X (formerly known as Twitter) and will fine its citizens $8,900 per day for accessing the site. Brazil’s president supports the ban and encouraged other governments to follow suit, saying, “The world is not obliged to put up with [X owner Elon] Musk’s far-right ideology just because he is rich.” As part of its crackdown, the government froze the bank accounts of Starlink, an entirely separate company that delivers internet service but is also owned by Musk.

Stateside, the debate over free speech continues to intensify.

Stanford professor and former U.S. Secretary of Labor Robert Reich encouraged world governments to go target Musk for detention. “Regulators around the world should threaten Musk with arrest,” Reich wrote, “if he doesn’t stop disseminating lies and hate on X.”

Reich also encouraged U.S. government policymakers to terminate contracts with Musk-owned SpaceX because of Musk’s political views (even as SpaceX prepares to rescue two astronauts trapped at the International Space Station because it’s really the only company on the planet that can).

And what was one of the most shocking revelations (even confessions) in the social media age, Mark Zuckerberg wrote a letter to Congress last month plainly describing what many had long suspected: “In 2021, senior officials from the Biden Administration, including the White House (ital. added), repeatedly pressured our teams for months to censor certain COVID-19 content, including humor and satire. . . I believe the government pressure was wrong, and I regret that we were not more outspoken about it. I also think we made some choices that, with the benefit of hindsight and new information, we wouldn’t make today.”

Recall the claims that at that time were considered “misinformation,” like the vaccine won’t stop the spread of COVID or the virus escaped from a lab in Wuhan.

It’s not clear what role, if any, Vice President Kamala Harris had in the episodes Zuckerberg related in his letter. Harris’s current running mate, Minnesota Governor Tim Walz, said in 2022, “There’s no guarantee to free speech on misinformation or hate speech, and especially around our democracy.” Though it’s an alarming claim, a brief clip from a live media interview can hardly tell the full story.

Only one candidate really made defense of free speech a centerpiece of his campaign, and that’s Robert F. Kennedy, Jr. One can (and maybe should) disagree with some of his positions, but on this subject he offered a robust defense of the First Amendment:

“When a U.S. president colludes with — or outright coerces — media companies to censor political speech, it is an attack on our most sacred right of free expression, the very right upon which all of our other constitutional rights rest.

. . .

“The mainstream media, once the guardian of the First Amendment and democratic principles, has joined a systematic attack on democracy. It always justifies its censorship on the grounds of ‘combating misinformation,’ but oppressors don’t fear lies. They fear the truth.”

There’s already plenty of hyperbole sloshing around out there, and it will only intensify in the weeks leading up to Election Day. It does not appear that freedom of speech in the United States faces a truly existential threat right now. But the mood surrounding free speech seems undeniably to have changed in recent years.

Senate Leader Phil Berger touched on the shift in a 2021 speech: “Debates over matters of public policy would reduce to appeals to commonly held principles. We’d debate how a policy choice impacts freedom of speech, for example, but we wouldn’t debate the value of freedom of speech. This is America, and in America we have freedom of speech. That’s it.”

Berger is right: The debate has shifted to the value of freedom of speech, and whether it requires more constraints. That’s dangerous territory because it means we can no longer take this freedom entirely for granted.