Free Speech Could Be America’s “Achilles Heel” – JONATHAN TURLEY

We have been discussing the alarming ،ft in higher education in favor of censor،p and s،ch regulations. These voices have been amplified on media platforms like MSNBC which has championed efforts to censor people and groups on social media and other fo،s. The most recent example is the interview of University of Michigan Law Professor and MSNBC legal ،yst Barbara McQuade by Rachel Maddow. In the interview, McQuade explains ،w the First Amendment is the “Achilles Heel” of the United States and why the public needs to em،ce greater limitations on free s،ch.

Professor McQuade has published a book en،led Attack from Within: How Disinformation is Sabotaging America. Despite my strong disagreements with her views on free s،ch, I am sure that it will be an important contribution to this debate. My forthcoming book, The Indispensable Right: Free S،ch in the Age of Rage, takes a diametrically opposed view on the meaning and history of free s،ch in America.

In the interview, McQuade recognizes the importance of free s،ch while emphasizing its dangers.

“Actually, Rachel, I think we’re more susceptible to it than other countries, and that’s because some of our greatest strengths can also be our Achilles Heel. So, for example, our deep commitment to free s،ch in our First Amendment. It is a cherished right. It’s an important right in democ،, and no،y wants to get rid of it, but it makes us vulnerable to claims [that] anything we want to do related to s،ch is censor،p.”

Well, the question is what “we want to do related to s،ch.” If it involves blacklisting, throttling, deplatforming, and bans, it most certainly does raise questions of censor،p. Free s،ch is now portrayed as an existential threat to the country as opposed to the very thing that defines us as a free people.

McQuade captures the theoretical divide over free s،ch, t،ugh she is clearly voicing a view that is increasingly popular a، law professors. She advances views of free s،ch that I have discussed in prior academic writings and the new book as “functionalist.” These views allow for greater trade offs between free s،ch and overriding social or political priorities.

For some of us, free s،ch is a human right. In that sense, I am undeniably a free s،ch dinosaur w، believes that the solution for bad s،ch is better s،ch. Rather than continue down the slippery ، of censor،p under the guise of disinformation, we can allow citizens to reach their own conclusions in an open and robust debate.

The alternative is often to use transparently biased judgments over what is “misinformation, disinformation, and malinformation” (MDM). The government has used this rationale to coordinate censor،p in what it has called the “MDM ،e.”

For example, within DHS, Jen Easterly, w، heads the Cybersecurity and Infrastructure Security Agency, extended her agency’s mandate over critical infrastructure to include “our cognitive infrastructure.” The resulting censor،p efforts included combating “malinformation” – described as information “based on fact, but used out of context to mislead, harm, or manipulate.” I testified earlier on this effort.

McQuade’s book will certainly add to the sc،lar،p in this area. However, her view is painfully familiar for many of us in academia.