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Americans rely on the right of free speech. The First Amendment was ratified and approved in 1791. But since then, certain forms of speech have been restricted. The Sedition and Espionage Acts made it a crime to criticize presidents and the government and even women protesting for voting rights. During World War I, the Sedition Act was used to arrest citizens for criticizing the war effort and even the appearance of army uniforms.
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Local groups were formed to spy on and report fellow citizens who expressed opposition to that war and thus were considered disloyal to the country.
The free speech debate over pornography remains opaque and child pornography is illegal. Definitions of pornography are ambiguous. And no matter how vile and despicable forms of pornography may be, First Amendment issues arise over what the public can see or hear. The issue is where and how are lines drawn to determine what is a crime or not. And that is far from easy.
On the other side of the ledger in expanding free speech, during the Vietnam War, flag burning became a popular means of expressing protest. The Supreme Court ultimately ruled flag burning was free speech. And six decades later, the court also ruled that money was a form of free speech in the Citizens United case.
Now, a number of very conservative Republicans, including Ohio Sen. J.D. Vance, are taking on the big technology companies, such as Google, on the grounds of free speech. On one of the Sunday talk shows, Vance used the example of asking Google if men can become pregnant. Vance recoiled when one answer appeared to be yes.
The Healthline website states: "Any individual with a uterus and ovaries can get pregnant. If you don't have a uterus, emerging technologies like uterus transplants may make it possible for you to get pregnant in the future." Is this a serious affront to free speech? Or is it just whimsical speculation about the future?
The National Enquirer is a well-known tabloid that has pushed the limits of free speech with many stories that were simply false or hugely exaggerated. One of the most famous examples was when the Enquirer outrageously reported that the well-known comedienne Carol Burnett was drunk in the company of Henry Kissinger. It was nonsense and entirely invented.
Burnett sued for libel and sought $10 million. The award was subsequently cut to $200,000. The case was finally resolved out of court. The point is that even the most absurd accusation in print or orally can have some protection under the First Amendment. Interestingly, the Enquirer broke the story over Donald Trump's relationship with porn actress Stormy Daniels and the payment of hush money.
As politics has become weaponized and made more vicious by extreme views and policies of the left and right, it is not inconceivable that assaults on the First Amendment will become more common, no matter who is elected. If President Joe Biden wins, it is possible extreme leftist and progressive ideology could lead to expanding the limits of free speech to accommodate even the most distasteful and offensive topics.
This is why Vance and other MAGA advocates want to limit Google and other technology companies that he believes will infect or subvert young users who lack the experience and maturity to evaluate what he deems to be dangerous material.
But the greater threat comes from the far right, who wish to limit free speech and the spread of opposing ideas. One can only speculate what Trump would or would not do regarding presidential powers if he were re-elected and free speech. The extreme extension of his view of presidential immunity as his lawyers argued could permit the commander-in-chief to order assassinations of political opponents with no consequence.
Trump used the offhand comment that he could shoot someone in broad daylight and get away with it. While this scenario surely seems unthinkable, suppose the Supreme Court decides that presidential immunity is viable in the conduct of the office. While assassination of foreign leaders was prohibited by executive order in the Ford administration, Presidents Barack Obama, Trump and Biden directed attacks that killed Osama bin Laden and other terrorist leaders.
U.S. governments, in times of crisis, have limited free speech. And on certain occasions, free speech has been expanded. What makes 2024 and beyond more worrying is that excesses of both sides of the political spectrum could indeed turn free speech into an incendiary political issue. Given the mood of the nation, any First Amendment scenario, tragically, cannot be discarded, especially when deep fakes and other disruptors will cause further havoc.
Harlan Ullman is UPI's Arnaud de Borchgrave Distinguished Columnist, a senior adviser at Washington's Atlantic Council, the prime author of "shock and awe" and author of "The Fifth Horseman and the New MAD: How Massive Attacks of Disruption Became the Looming Existential Danger to a Divided Nation and the World at Large." Follow him @harlankullman. The views and opinions expressed in this commentary are solely those of the author.
