Almost everywhere you turn today, politicians are telling the public to “get used to the new normal” after the pandemic. For some people, this means public health precautions from social distancing to banning handshakes. Others have quickly added long standing dreams for everything from the guaranteed basic income advocated by Representative Alexandria Ocasio Cortez, which was also recently raised by House Speaker Nancy Pelosi, to mailed voting elections advocated by many Democrats. The most chilling suggestion, however, comes from the politicians and academics who have called for the censorship of social media and the internet. The only thing spreading faster than the coronavirus has been censorship and the loud calls for more restrictions on free speech. The Atlantic recently published an article by Harvard Law School professor Jack Goldsmith and University of Arizona law professor Andrew Keane Woods calling for Chinese style censorship of the internet. They declared that “in the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong” as “significant monitoring and speech control are inevitable components of a mature and flourishing internet, and governments must play a large role in such practices to ensure that the internet is compatible with society norms and values.” The justification for that is the danger of “fake news” about coronavirus risks and cures. Yet this is only the latest rationalization for rolling back free speech rights. For years, Democratic leaders in Congress called for censorship of “fake news” on social media sites. Twitter, Facebook, and YouTube have all engaged in increasing levels of censorship and have a well known reputation for targeting conservative speech. Hillary Clinton has demanded that political speech be regulated to avoid the “manipulation of information” and stated that Facebook founder Mark Zuckerberg “should pay a price for what he is doing to our democracy” by refusing to remove any opposition postings. In Europe, free speech rights are in a free fall, and countries such as France and Germany are imposing legal penalties designed to censor speech across the world. Many of us in the free speech community have warned about the growing insatiable appetite for censorship in the West. Yet we have been losing the fight, and free speech opponents are now capitalizing on the opportunity presented by the pandemic. Representative Adam Schiff sent a message to the executives of Google, Twitter, and YouTube demanding censorship of anything deemed “misinformation” and “false information.” Yet YouTube did exactly that a few days earlier by removing two videos of California doctors who called for the easing of state lockdown orders. The doctors argued that the coronavirus is not as dangerous as suggested and that some deaths associated with the pandemic are not accurate. There is ample reason to contest their views but, instead, YouTube banned the two videos to keep others from reaching their own conclusions. Facebook will not only remove posts it considers misinformation about the coronavirus but will issue warnings to those who “like” such postings. Facebook said that it wants to protect people from dangerous remedies and false data. Ironically, the World Health Organization praised Sweden for its rejection of the very restrictions criticized by the two doctors. The group declared that Sweden is a “model” country despite its rejection of lockdown measures being protested in the United States. Moreover, many mainstream media sources have reported information that is now known to be false from the lack of any benefits of wearing masks to the failure in trials of drugs like remdesivir to the shortage of thousands of ventilators. Despite those being wrong, related opposing views were often treated as either fringe or false positions. This subjectivity of censorship is why the cure is worse than the illness. The best cure for bad speech is more speech rather than regulation. The fact is that the pandemic, as Clinton reminded voters, is a “terrible crisis to waste.” Yet the waste for some would be to emerge from the pandemic with free speech still alive. Even former Democratic presidential candidate Howard Dean, who has falsely declared that hate speech is not protected under the First Amendment, recently boycotted MSNBC until it stopped airing press briefings by President Trump as “fake news.” Ocasio Cortez has called for action against Facebook for not censoring false or misleading political ads. In a confrontation with Zuckerberg, she dismissed concerns over censorship of speech and demanded, “So you will not take down lies or you will take down lies? I think that is a pretty simple yes or no.” Whether contesting lockdown orders by officials or challenging the views of politicians, you can just declare an opposing view as “misinformation” and demand that others not see it. This crisis is a chance to redefine free speech to allow greater ability to control what opponents say and what the public reads. Academics have been laying the foundation for an anemic form of free speech for years. Even college presidents a few years ago had declared that there is no protection for “disingenuous misrepresentation of free speech.” Goldsmith and Woods wrote that the public should resist those “urging a swift return to normal,” and the “extraordinary measures we are seeing are not all that extraordinary.” So this is the new normal that some leaders and academics want the public to accept. After all, it is tough to get people to give up freedoms. It takes a crisis to convince them that notions like free speech are no longer relevant. After spending years seeking to convince Americans to follow the European trend against free speech, these folks are using the pandemic to claim that free speech could kill you. Censorship works in a country much like the coronavirus. Initially, you feel better from silencing those views that you consider lies. Then comes the crash as others demand more and more censorship, including views that you consider to be true. That is what has happened in Europe, where an expanding range of speech is being criminalized or censored. Without uncensored speech, the political system is left gasping for air. China has been particularly eager not to “waste” the opportunity of this crisis. Chinese professor Xu Zhangrun is one of many citizens arrested after publishing criticism of Xi Jinping on his handling of the crisis. The government deemed such criticism to be fake news causing panic. It has censored accounts of its concealing the source of the original outbreak, including censorship on popular Chinese apps such as WeChat. Citizens now will have to decide, as Goldsmith and Woods insist, if “China was right.” For my part, I remain hopeless in my longing for old fashioned free speech before the pandemic. You see, this “new normal” seems a lot like the old normal which the Framers changed with the First Amendment. China may be right for many in Congress and academia, but it remains on the wrong side of history. Not even a pandemic will change that.
Agreed, and well said, Jonathan. Professor Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. His legal opinion is widely respected on BOTH sides of the political aisle. And, to be VERY clear, he is a liberal Democrat. You can find his updates online @JonathanTurley