Since the drafters of the constitution did not define free speech, it is impossible for us to know what precisely they meant when they said “congress shall make no law…abridging the freedom of speech.” However, even if we could call up James Madison and ask him precisely what he meant, society has changed so much in so many unforeseeable ways in the last 200 plus years (the Internet exists, for example), that we would likely need to adapt its denotation anyway.
In our never-ending journey to pin down the reach and limitations of the First Amendment, several landmark Supreme Court cases stand out. One of these is Near v. Minnesota (1931), in which Justice Hughes delivered the opinion of the Supreme Court: the court could not place prior restraints on publications, meaning just because a newspaper may publish something libelous about you, does not mean that you can legally prevent them from publishing it (Epps, 107).
New York Times v. Sullivan expanded on Near v. Minnesota’s progress in defining the First Amendment (121). In this 1964 case, the court decided that public officials and figures could not sue a publication for defamation unless they could prove the the content published was purposefully or recklessly false. While in the past libel defendants had been guilty until proven innocent (they held the burden of proving the truth), now they were innocent until proven specifically guilty.
These developments granted much more freedom to the press to publish criticism of public figures without fear, and as a citizen who wants to be informed about misconduct in the government, I’m grateful. As someone who wants a career in journalism, I’m also happy to know that I can report truthfully without constantly fearing I’ll be jailed or sued for more than I’m worth.
However, one manifestation of our free speech that our founding fathers could never have predicted is: Internet trolls. These days, nearly everyone is member of the media. My mom is more active on her Instagram than I am, my cat has a dedicated Facebook page, and my grandma just demanded her own iPhone, so it’s only a matter of time. Not to say that any of them are trolls (though the cat most definitely is), but the now infamous propagators of so-called “fake news” are. The instance that comes most readily to mind is Pizzagate. Pizzagate was a conspiracy theory that materialized after WikiLeaks published Hillary Clinton’s personal emails, and it claimed that Clinton and John Podesta were involved in a child-abuse ring housed in a Washington, D.C. pizza shop.
In a recent New Yorker Radio Hour podcast, Hillary Clinton comments on Pizzagate and related fake news incidents. “Innocuous comments in the [WikiLeaks] emails were transformed into attacks…If you read on Facebook, or Twitter, or in Infowars about John and I running a child trafficking ring in a pizza parlor…and the Clinton foundation turning its money over to us, and paying for our daughters wedding— people believed that,” says Clinton. While those historic Supreme Court decisions were made to protect free speech and free press rights, so that publications could report without fear of persecution and citizens could remain informed, it seems that they can also have the opposite effect. In an effort to inform themselves, many people believed these wholly false allegations to be true and decided to vote for Trump. “We [lost] people trying to make up their minds,” says Clinton.
In continuing to talk about the WikiLeaks emails, Clinton says, “They not only dropped them…they weaponized them.” The concept of weaponizing words is interesting, given Justice Holme’s oft-quoted idea that speech is free unless and until it presents a “clear and present danger” (Lewis, 26). Speech is inherently nonviolent, and until it threatens immediate violence it’s all above board. Maybe we never could have predicted the malice of the words describing a pedophiliac pizza parlor, but now that we are living in Trump’s America, the danger feels clear and ever-present.