There has been a lot of talk in recent years in the United States about “free speech,” much of it misinformed.

It has gotten so bad that elected officials, and not just the fringe ones, and lawyers–people who ought to understand the law–are promoting a theory of protected speech that is unsubstantiated by the legal framework of this country.

Protest march in Washington, D.C. in 2017 past the text of the First Amendment

The term “free speech” or “freedom of speech” derives, as best I can figure, from the First Amendment to the Constitution of the United States: “Congress shall make no law…abridging the freedom of speech….”

What that means specifically has been interpreted by over 200 years of Supreme Court decisions. The key bottom line for me is two things:

• Citizens and noncitizens are not free to say literally anything in the US. The government can put restrictions on speech that would lead or does lead to violence, cause mass panic, or is used to intimidate or threaten others.
• The “abridging the freedom of speech” part of the First Amendment applies only to the government. Not private employers. Not your neighbor. Not media outlets that are not controlled by the government. Again, only the government.

In other words, when some idiot is yakking about how suspending someone from Twitter is taking away their right to free speech, that is outright bullshit. Twitter is a private company, not the government.

No one has a Constitutional right to use Twitter. Or to comment on web pages owned by private companies. Or to say anything they want to at work, when the employer is a private enterprise.

What about bald-faced lies? Yes, in the US you have the freedom to say, and believe, lies. The government is not allowed to stop that (unless it involves some of the above mentioned circumstances). But anyone who is not the government can have policies and procedures in place to put a stop to deliberate falsehoods, hate speech, and advocating violence, if applied with equality and with consideration to protected classes of people.

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There is another long-standing legal concept of the “reasonable person standard.” This is where judges and juries consider what would be acceptable or unacceptable to a hypothetical reasonable person, when deciding whether to rule for or against someone in court.

This assumes there is agreement and understanding held in common and widely shared of what “reasonable” means. The events of recent years, when people form their opinions based on the intentional falsehoods of celebrities such as Rush Limbaugh, Alex Jones, and Tucker Carlson, makes me wonder if that will continue to be the case.

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The position the Supreme Court has taken is that the cure for a proliferation of lies is to flood the “marketplace of ideas” with other points of view. The gist is that the more ideas that are circulating, and the more varied those ideas are, truth and a shared concept of reality will ultimately win. (See New York Times Co. v. Sullivan (1964), Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (1980), United States v. Alvarez (2012).)

Unfortunately, many times the lies are more attractive, more comforting, spoken more loudly and with more fervor, than the actual truth. I worry that facts cannot keep up with the constant output of lies.

This to me raises the issue of how long our modern civil society can tolerate this festering subculture of lies. Just being passive is, increasingly, not an option, in my opinion. Rather, those who are still able to identify the truth need to speak, speak loudly, and not assume that one can appeal to people’s reason, compassion, or sense of community.

The risks are real.