Thomas Edsall provides a fair survey of academic challenges to the current understanding of the First Amendment. Two points stand out, the first being that the internet has given rise to a structural change in society where crazies and fools were once isolated, but now have the ability to find each other, link arms and create a cohort of like-minded people.
People were always crazy, but they couldn’t find each other, they couldn’t talk and disperse their craziness. Now we are confronting a new phenomenon and we have to think about how we regulate that in a way which is compatible with people’s freedom to form public opinion.
One isolated crazy was relatively harmless. A million crazies, reinforcing each other’s absurd beliefs such that they no longer believe they’re crazy, but believe that whatever nonsensical belief is lurking in their dark, moist heads is real, presents a different problem. And before anyone raises the point, this is not a phenomenon of the right or the left, but of people whose crazy flies out in all directions with pretty much the same level of impassioned belief and irrational refusal to reason.
The other point that stood out was the shift from honestly held, if completely false, beliefs to the deliberate propagation of lies directed toward misleading, enraging, and ultimately pushing to action the newly-formed tribes of believers.
There is a cadre of scholars, especially younger ones, who believe that the First Amendment balance needs to be struck differently in the digital age. The greatest threat is no longer censorship, but deliberate disinformation aimed at destabilizing democratic institutions and civic competence.
The arguments against these concerns is well-established and obvious, that competing beliefs are the essence of free speech, and who is to say that one side is right and the other wrong? Isn’t that exactly what the marketplace of political ideas is all about, the ability to persuade people to believe? And indeed, this is an age-old truth, as expressed by Justice Robert Jackson in Barnette (1943):
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Notably, this is about the government establishing an orthodoxy, not mobs of crazies. Of course, in 1943, it wasn’t easy to round up a mob to back one’s orthodoxy and seek to ram it down the throats of others. Today, a well-placed twit can do it in milliseconds.
As of the moment of writing, it appears that the Democrats have won one, and likely two, Senate seats in the Georgia runoff. What this means for America isn’t entirely clear, but what it means for Republicans, and for Donald Trump, seems brutally clear: As much as America does not embrace radical progressive change, America rejects Trump, the embodiment of vulgar, amoral, lying, racist, narcissistic ignorance.
Trump was never conservative. He was never Republican. He had no ideology beyond self-enrichment and self-aggrandizement. He was just a little man whose one skill was to market himself to the angry and disaffected people whom he despised, but pretended to like. And the disaffected believed him because they wanted someone with whom they could relate to believe, feeling left behind by the elites who similarly despised them.
Today, Joe Biden will be officially elected President of the United States of America. There will be objections by representatives in the House and senators, some of whom believe just like the crazies and some of whom are cynical enough to know better but believe there is political capital to be had.
Trump will not stop. He cannot stop. He is humiliated by his loss, crushing his ego and willing to say or do anything to win. That’s not a surprise to anyone who was familiar with Trump before his foray into politics or since. He has no sense of shame and the only thing that matters is to win the game. He will do anything necessary to try, not for you but for him. It’s not that he intentionally indulges in shamelessness, but that shamelessness is not a bad thing in his mind, but just another tool to be used to accomplish his end. He believes he is doing the right thing, because he believes that the only right thing to do is for him to win and not be disgraced as the worst failure ever.
The election was not “stolen.” There was never massive fraud, but massive disinformation to create doubt and belief among those who wanted to doubt Biden won and believe Trump won. He and his small but dedicated band of nutjobs and liars lied. People believed for the same reason people always believe. They want to.
But today is the day. There is supposed to be a big rally/protest in D.C. There will be a counting of the electoral college votes. There will be violent provocateurs in the streets. And Trump has issued a lie to inflame the mob.
There is nothing, absolutely nothing, the vice president can lawfully do to change the outcome of today’s electoral college vote. While one might excuse Trump for his legal ignorance, as he’s neither a lawyer nor someone inclined to do the hard labor of thinking, he has people around him who can tell him the truth. It must thus be assumed he knows this to be a complete lie and that there is no authority, no options, available that can alter the inevitable outcome. Yet, Trump is telling you this lie in the hope that you are stupid enough, passionate enough, crazy enough, to believe him. And when it doesn’t happen, he will blame Vice President Mike Pence for failing him and you. It will be a lie.
One theme that ran through Thomas Edsall’s survey of academic concern about the First Amendment is that something must be done to protect truth from the aggregation of mobs of crazies and disinformation campaigns fed to them. That they have identified a problem, a very serious and real problem, really can’t be questioned. Trump is its symptom. Not its only symptom by any means, but still.
But that there is a problem does not mean free speech needs to be eviscerated to cure the disease. No one forces us to believe lies. No one forces us to join arms with mobs of crazies. No one compels us to seize upon the worst of our nature. We have free choice to believe as we choose, in freedom, equality, democracy and the American Dream, while rejecting the smallest, worst, most repugnant person to be elected president.
There will be many battles to come, as the Democrats fight among themselves, moderate liberals against radical progressives, for the reimagination of a Nation. There will be principles at stake, solutions that could fix problems or make them far worse, perhaps even unfixable. This is not despite Trump, but because of Trump. He is not worthy of costing us our freedom. He never was. But if this doesn’t stop today, it could well happen. Don’t sacrifice America for the likes of someone as worthless as Trump.