Kerry’s Constitutional Confusion

John Kerry, the former U.S. Naval officer, senator, secretary of state, and candidate for the presidency, a man who has taken the oath of allegiance to the Constitution many times now, says that “our First Amendment stands as a major block to be able to just, you know, hammer [disinformation] out of existence.”

So, finally, a major Democrat says the quiet part out loud. Our freedom of speech has made it too easy for disinformation to flourish in the media biome and it is becoming impossible to “govern” the masses, Kerry explained at a World Economic Forum meeting: 

The dislike of and anguish over social media is just growing and growing. It is part of our problem, particularly in democracies, in terms of building consensus around any issue. It’s really hard to govern today. You can’t—the referees we used to have to determine what is a fact and what isn't a fact have kind of been eviscerated, to a certain degree. And people go and self select where they go for their news, for their information. And then you get into a vicious cycle…. You know there's a lot of discussion now about how you curb those entities in order to guarantee that you're going to have some accountability on facts, etc. But look, if people only go to one source, and the source they go to is sick, and, you know, has an agenda and they’re putting out disinformation, our First Amendment stands as a major block to be able to just, you know, hammer it out of existence.

Kerry articulated what many Dems have only hinted at: abolishing the broad protections of the First Amendment to “clean up” disinformation and create a “better” democracy.

Jefferson saw the First Amendment creating an informed populace necessary for a democracy to flourish. Now, according to Kerry, that populace can no longer be trusted to read and must have “referees” to help keep them in line. In other words, government and private industry partnerships to police social media and other forms of information.

We’ve seen a test case of Kerry’s dream in the wild with pre-Musk Twitter. As Twitter became a more powerful player in social media as a source of news for people in general, the company and the government worked together (see the Twitter Files; the same applies to Facebook and other social media giants) to censor information deemed detrimental to a gullible public. They deleted individual “bad” tweets, promoted “good” ones, and cleansed the environment of dissenting voices by suspending offending accounts. This of course was all done on the edges of the First Amendment; Twitter is a private entity, and therefore capable of regulating speech internally, but was doing so on behalf of the government, which acted like a dictator’s censor (until they got caught).

The primary focus of all that censorship in contravention of the First Amendment was the Covid pandemic, when dissenting voices were stifled and what we now know to be government lies about masks and social distancing were promoted. Similar processes kept Americans from initially reading the truth about Hunter Biden’s laptop and the Russian Hoax materials claiming Donald Trump was a sleeper agent. While all censorship is bad, censorship that directly deprives a democracy of information is wicked. John Kerry thus already has a pretty good idea what a United States without the First Amendment might look like.

What Kerry and his ilk want is already a part of life in Great Britain: prior restraint of speech. The UK has no First Amendment and, in fact, no written constitution at all. In the U.S., the highest law of the land is the Constitution, of which the First Amendment is part. Any law or regulation passed by Congress must also pass the constitutional test. But in Britain, Parliament is supreme and any act passed there is interpreted and enforced directly by the courts. So while Kerry cannot vote the First Amendment out of existence, the British Parliament can create any number of acts that shape or limit speech. Prior restraint is one of these restrictions, which enables the British government to preemptively halt the publication of material. In the case of governmental information the only criteria is when it is “in the national interest” to do so (this also gets into the fascinating tangle between the U.S. Espionage Act and the UK Official Secrets Act, a complexity beyond this article).

The milestone year for all this was 1971, when the late Daniel Ellsberg leaked the Pentagon Papers to the New York Times. Reporters at the Times feared jail, as leaked classified materials had never been published in the press before. A court ordered the Times to cease publication after initial excerpts were printed, the first time an American federal judge applied prior restraint to a newspaper. The Supreme Court case New York Times Company v. United States vindicated the First Amendment, and the Times won the Pulitzer Prize. Ever since, the American press mostly prints what it finds, secret or not.

The law professor Steve Vladeck notes, 

Although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause. The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.

In Britain, an entity could theoretically be punished with prior restraint or if what they ultimately print is libelous. (Libel laws also differ greatly between the U.S. and the UK.) In the United States, however, even speech which may ultimately be punished in some way (for example, libelous speech) may not normally be subject to prior restraint.

We have seen what a world without the First Amendment looks like, and it is not good. We are approaching a time when the freedom to speak may no longer exist independent of the content of speech. What you’re allowed to say could depend on the government’s opinion. We have had a peek at what government can do: blocking important debate on issues that affect the health of every American, or which could sway an election in the case of Russiagate or the Hunter Biden laptop. There is a reason the Founders placed so much emphasis on free speech. Kerry, who now reimagines free speech as a liability to democracy, has clearly forgotten those lessons.