The War on Free Speech Is About To Get a Lot Uglier

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One week after being trapped inside the United States Capitol as thousands of pro–Donald Trump marauders attempted to forcibly “stop the steal” of the presidential election, Rep. Alexandria Ocasio-Cortez (D–N.Y.) suggested one possible federal government response: convening a national commission on media literacy.

“We’re going to have to figure out how we rein in our media environment so that you can’t just spew disinformation and misinformation,” Ocasio-Cortez told her followers in a video message. “It’s one thing to have differing opinions, but it’s another thing entirely to just say things that are false.”

The road to speech restrictionism is paved with political rhetoric about protecting the proletariat from falsehoods. Hungarian Prime Minister Viktor Orbán last year cited the potentially deadly dangers of “fake news” while ramming through a law punishing coronavirus misinformation with up to five years in prison. Holocaust denial is illegal in more than a dozen European countries, in the name of safeguarding Jewish minorities. Donald Trump, before he was elected president, vowed to “open up our libel laws” as a remedy for “negative and horrible and false articles.”

Thankfully, Trump’s implausible threat—there are no federal laws governing libel, for starters—foundered on the same rocks that will thwart any Ocasio-Cortez attempt to have the feds arbitrate falsehoods and “rein in” free expression. America’s legal and cultural speech traditions are the strongest on the planet, and the Supreme Court under Chief Justice John Roberts has been vigorous in defending the First Amendment.

Add to that legal roadblock a more temporal impediment to Ocasio-Cortez’s policy agenda: Legislation in the 117th Congress will be shaped much more by the most conservative Democrats in the 50–50 Senate than it will by the loudest socialists in the House.

But that doesn’t mean AOC-style censorship will be cauterized in the post-Trump era. To the contrary.

The awful events of January 6 accelerated trends in left-of-center circles, particularly within media and technology companies. Shocked at the sight of a violent mob lending street muscle to a lame-duck president’s conspiracy theory, journalists, academics, and social media companies seemed at once to agree on a two-pronged strategy: using the most maximally negative adjectives to describe the country’s still sizable Trump rump and banishing that bloc’s most deplorable figures from every platform within reach.

First it was the sitting president who was sent to social-media Siberia. Soon, the Twitter-for-right-wingers site Parler found itself without web hosting services after Amazon, Apple, and Google severed all business ties within a 48-hour span. The day after the House impeached Trump for a second time, the journalistic chattering classes redirected their outrage toward Politico inviting conservative commentator Ben Shapiro to be a single-day guest editor of its flagship email newsletter.

The deplatforming mania was almost awesome to behold. “You need to be shut down!” MSNBC anchor Mika Brzezinski ranted in the general direction of Facebook. “Nobody needs what you have to offer. You’ve destroyed this country.” Neoconservative NeverTrumper and Washington Post columnist Max Boot thundered that President Joe Biden “needs to reinvigorate the [Federal Communications Commission] to slow the lies and sedition from Fox and other right-wing broadcasters.” Otherwise, Boot warned, “the terrorism we saw on Jan. 6 may be only the beginning, rather than the end, of the plot against America.” The Associated Press sent out this scare headline to its 1,300-plus media-industry subscribers: “Extremists exploit a loophole in social moderation: Podcasts.”

Among the trial balloons taking flight in this fraught moment was a national commission. Philadelphia Inquirer columnist Will Bunch suggested a South African–style Truth and Reconciliation process “to address the lies and the anti-democratic policies of the Trump years.” It would be “a chance for finding a common national story, for amnesty and a new beginning,” Bunch argued, adding ominously, “I’d be shocked if this happened, but I don’t know any other peaceful path forward.”

This is not the first time the nation’s intellectual and political gatekeepers have found themselves mobilized to collective action after a traumatic outburst of right-wing violence. In 1995, when Timothy McVeigh murdered 168 people with a fertilizer bomb at a federal building in Oklahoma City, President Bill Clinton affixed partial blame to “loud and angry voices” who “spread hate” on conservative talk radio, plus anyone else who believes that the greatest threat to their liberty comes from the U.S. government. “There have been lawbreakers among those who espouse your philosophy,” he scolded the latter group.

But a more interesting antecedent to 2021’s journalistic consensus began in 1944, when, as part of elite soul searching over America’s initially sluggish response to the worldwide threat of fascism, Time Publisher Henry Luce tabbed University of Chicago President Robert Maynard Hutchins to convene a blue-ribbon Commission on Freedom of the Press. The Hutchins Commission, featuring more than a dozen academics and revolving-door government employees including Reinhold Niebuhr, Arthur Schlesinger, and Archibald MacLeish, produced in 1947 one of the most enduringly influential documents in the history of modern media theory, titled A Free and Responsible Press.

Vibrating with revulsion at the lurid, corrupting excesses of tabloid newspaper journalism, the report denounced sensationalism, warned against “‘hate’ speech” (hilariously, the word bureaucratic was cited as an example), and called for the creation of a national news council to establish and enforce professional standards. As the media scholar Stephen Bates dryly noted in a 2018 paper, “Although it might seem difficult to take the new out of news, the commission tried.”

At the heart of the project was a paternalistic disgust that consumers were choosing media wrong, that press barons were building fortunes by pandering to base tastes, and that, as a result, the American experiment of self-government was being undermined from within. The media “can spread lies faster and farther than our forefathers dreamed when they enshrined the freedom of the press in the First Amendment to our Constitution,” the report’s authors lamented. “The press can be inflammatory, sensational, and irresponsible. If it is, it and its freedom will go down in the universal catastrophe.”

Unsurprisingly, that elitist message landed like a stink bomb in smoke-filled 1940s newsrooms. “‘A Free Press’ (Hitler Style) Sought for U.S.,” ran the unsubtle headline in Col. Robert McCormack’s Chicago Tribune.

But then a funny thing happened. As radio and television killed off afternoon papers and newspaper wars reduced the options in most big cities to a single broadsheet monopoly, owners found the Hutchins professionalization model useful for attracting readership from all political persuasions and for building up their own personal prestige. Newsrooms fattened to a historic degree. Until technology enabled their captive audiences to flee.

It turns out people, now as then, still want to read about local crime, absorb different political viewpoints, and otherwise consume media in ways that journalistic elites find skeevy. And unlike in 1947, those attempting to shape the discourse in 2021 are not bothering to try to shove a national polity into a common public square. Instead, like bouncers working the velvet rope, they’re policing who gets to be in the club and how they should behave once inside. This development, in our era of extreme and sporadically violent polarization, threatens to make both journalism and politics worse, assuming that’s possible.

Consumers of political delusion have nobody but themselves to blame for their behavior on January 6. But by expelling rather than interacting with them, elite journalism threatens to make itself more susceptible to confirmation bias and hyperbolic error. Who shall first be virtuous enough to break this vicious cycle?


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