Former President Donald Trump may have promoted a protest that turned into a riot on Jan. 6, 2021, but his running mate, Sen. J.D. Vance (R-OH), is right: The real long-term threat to democracy in the United States is the increasing willingness of Democratic Party leaders to use the power and leverage of the federal government to silence speech they don’t like. And their ignorance of Supreme Court precedent on the matter isn’t reassuring.
After Gov. Tim Walz (D-MN), Democratic vice presidential candidate, called Trump “a threat to our democracy” during the first and only vice presidential debate, Vance retorted that, while “there were problems in 2020,” going forward, the bigger threat to democracy is, “Kamala Harris wants to use the power of government and big tech to silence people from speaking their minds.”
“That,” Vance insisted, “is a threat to democracy that will long outlive this present political moment.”
To which Walz responded, “You can’t yell fire in a crowded theater. That’s the test. That’s the Supreme Court test.”
Someone apparently skipped school the day First Amendment law was taught in social science class at Chadron State University.
In Walz’s defense, the Supreme Court was at one point more sympathetic to the type of censorship Walz and the Democratic Party are now trying to enforce. In 1919, in Schenck v. United States, the Supreme Court upheld the conviction of Charles Schenck, the secretary of the Socialist Party of America, for violating the Espionage Act by mailing a two-page letter to 15,000 people opposing the military draft.
“Wake Up, America! Your Liberties Are in Danger!” Schenk wrote, “Assert your rights!”
For the crime of opposing the draft during World War I, former President Woodrow Wilson prosecuted Schenck under the newly passed Espionage Act of 1917. Former Chief Justice Oliver Wendell Holmes upheld the conviction, writing, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”
So Walz wasn’t completely wrong. The Supreme Court once held that shouting fire in a crowded theater was not protected by the First Amendment, but it did so in an infamous case that wrongly gave the federal government dictatorial authority to shut down debate about the most important public policy matters of the day.
Fortunately, the Supreme Court came back and fixed the error it made in Schenck, holding in Brandenburg v. Ohio that free speech could not be so easily limited. Instead, the proper test for limiting speech was much narrower, namely whether or not it was “likely to incite or produce … imminent lawless action.”
Under this test, Walz and his Democratic Party allies’ efforts to censor hate speech and misinformation are plainly unconstitutional. Just look at former Secretary of State John Kerry, who recently told a World Economic Forum panel, “Our First Amendment stands as a major block to the ability to be able to hammer [disinformation about climate change] out of existence.”
The Democratic Party and its media allies have a preferred narrative about a number of matters, and it wants to see the First Amendment repealed so that it can “hammer” dissent “out of existence.”
For example, during the vice presidential debate, CBS moderator Nora O’Donnell asserted, “Scientists say climate change makes these hurricanes larger, stronger, and more deadly” while discussing climate change. Some scientists do say that, but they are in the minority. The actual consensus is that climate change has not made hurricanes worse. However, if Harris, Walz, Kerry, and O’Donnell got their way, anyone who disagreed with the Democratic Party’s preferred narrative on climate change and hurricanes would be censored by the federal government.
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Sometimes, the Democratic Party enlists Big Tech social media platforms to do its dirty work, the same way Big Tech did with the Hunter Biden laptop story in 2020 and with the debate over the origin of COVID-19. It also enlists nongovernmental organizations, such as the Global Disinformation Network, to pressure advertisers to boycott Republican outlets such as this one, all for the crime of accurately reporting on social science data.
It is this desire by the Democratic Party to work with Big Tech and nongovernmental organizations to censor information they don’t like that is the real threat to democracy.