Skip to main content

Friday Special: The Left’s New Fear of Speech


As we said there in rejecting Virginia's claim that the only way it could enable its citizens to find their self-interest was to deny them information that is neither false nor misleading: "There is… an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.

- Thurgood Marshall, Linmark Associates, Inc. v. Township Of Willingboro, 431 U.S. 85 (1977)


With 2020 being such a caustic year, many novel innovations will be forgotten. Does anyone remember that the global shutdown was supposed to last three weeks to “flatten the curve?” The phrase probably rings a bell now that you hear it, but I bet you haven’t thought of it lately. We took for granted that something had to be done. We blithely accepted that lockdowns were the only answer. And then we promptly forgot that they were supposed to last less than a month. One innovation that must not be taken for granted, blithely accepted, and finally forgotten, is the way the media elites have taken it upon themselves to shield the public from information the elites don’t think we should have. 


To be clear, no state or federal laws have been broken. The first amendment doesn’t apply to private companies. So Facebook and Twitter can delete posts and shut down accounts linking to medical professionals who stepped outside the prescribed orthodoxy on Covid-19 policy. CNN can refuse to air a political ad. The broadcast networks can all decide independently to refuse coverage of a reliably-sourced story that makes one candidate look bad, even when four years before they couldn’t hide their glee in covering a similar story with much less reliable sourcing. None of that is against the law. But it used to be that their audience would evaporate over coverage so thoroughly Anti-American. To be absolutely clear, I do not mean to imply that one political party is “American,” and the other is Anti. I mean to state flat out that interfering with the free dissemination of viable information - no matter who benefits - is unAmerican. 


We used to take for granted that the cure to bad speech was good speech. If you don’t like what someone is saying, go out, speak your mind, and convince people that you’re right. We used to compete in the marketplace of ideas. In fact, it was liberals who used to be the best at making that argument. Justice Louis Brandeis, who was appointed by Woodrow Wilson, is often credited with popularizing the counter-speech doctrine. Decades later, no less an authority than civil rights champion Thurgood Marshall authored an opinion citing the same reasoning. Certainly there is a difference between government prohibitions on speech and private censorship. But these actions raise several questions. What happened to counter-speech? And when did the so-called news outlets decide it was okay to be openly partisan? And why is anyone still watching? 


If liberals are really the bearers of truth, justice, and all that is good, why are they so afraid of conservative speech? 


Mike Davis is a Research Fellow at 1889 Institute. He can be reached at mdavis@1889institute.org. 


The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.


Popular posts from this blog

1889 Institute's Statement Regarding School Closures

The 1889 Institute, an Oklahoma think tank, has released the following statement regarding Joy Hofmeister’s proposal to keep schools closed for the remainder of the school year. We at the 1889 Institute consider Joy Hofmeister’s proposal to close Oklahoma’s schools for the rest of the school year a gross overreaction to the coronavirus situation. Even in the best of times and circumstances, suddenly shifting every student in the state from traditional classrooms to online distance learning will have negative educational consequences. This in addition to the economic burden on two-earner families forced to completely reorder their lives with schools closed. We believe many of our leaders have overreacted to worst-case scenarios presented by well-intended health experts with no training or sense of proportion in weighing the collateral damage of shutting down our economy versus targeting resources to protect the truly vulnerable. We say reopen the schools and stop the madness. ...

Can Government Force You to Close Your Business?

1889 Institute takes no position on whether any or all of these measures are warranted or necessary, or whether their economic fallout would inflict more human suffering than they prevent. We are simply evaluating whether they are legal.   With the unprecedented (in the last 100 years at least) reaction surrounding the outbreak of Covid-19, questions that few living legal scholars have considered are suddenly relevant.   Can a quarantine be ordered?   Can a mass quarantine, lockdown, or “cordon sanitaire” be ordered? Can businesses be ordered to change their behavior?   Can businesses be ordered to close? Can state governments order these measures? Can local governments order these measures? My legal brief addresses these issues from a statutory point of view; it is clear that state law gives the governor and mayors broad authority in a state of emergency. They must, of course, do so in a neutral way that they reasonably believe will help preve...

Legislating through Litigation

Oklahoma’s Attorney General and trial courts appear to now be in the business of taxing industries and appropriating funds to state agencies. These are powers that the Oklahoma Constitution explicitly grants to the legislature . They are certainly not given to the Attorney General or the courts. But in the name of mitigating a “public nuisance,” these legislative powers have effectively been misappropriated.   The $572 million judgment recently handed down in Oklahoma’s opioid litigation looks an awful lot like a piece of legislation. It purports to tackle a broad societal problem by taxing a company alleged to have contributed to it and using the money to fund government agencies and programs aimed at ameliorating the problem. The Court and Attorney General justified this approach by claiming an “abatement plan” was needed to counter the so-called public nuisance of prescription drug abuse. Besides stretching the public nuisance theory far beyond its historical application ,...

Even If Pandemic Models Were Right, Were Covid Lockdowns Wrong?

1889 has been quite critical of pandemic modeling that government officials have relied on for their Covid-19 response. We have also criticized shutdown orders in light of flaws in the models. But let’s assume for a moment that the worst predictions really would have come true if nothing was done. Even in those worst case scenarios, it’s fair to ask if our governments did the right thing. Were involuntary shutdowns justified, or would people have found a way to both limit the contagion and maintain some level of productivity? Was putting healthy citizens under house arrest acceptable even if they were willing to risk infection?   While large groups of people are often compared to herd animals, we are not sheep. We don’t behave like animals. We can, have, and will step up when our communities are in danger. When government and journalists give incomplete or false information, people will act irrationally. Depending on the situation, some will blindly follow the first aut...