Let’s be honest. We Americans are a fundamentally good people. However, the good is being upstaged and corrupted by brutish and even criminal abuses of free speech. The Golden Rule and respect for truth have disappeared from much of our public discourse.
Bad actors ranging from common bullies to unprincipled politicians weaponize the internet, social media, and now artificial intelligence to deceive, malign, intimidate and threaten citizens. As a result, it takes exceptional bravery to enter the public sphere and perform civic duties today. Anyone with an internet connection can shatter the security of our families, our standing in the community and even our careers.
We should step back and ask whether there is anything we can do to restore civility to civil society.
One obstacle is the fear of slippery slopes — the idea that anything we do to regulate freedoms will eventually take them all away. Gun control is a classic example. The National Rifle Association’s power derives from its argument that any restriction on gun ownership will inevitably lead to government confiscation of all firearms.
But the fear of one slippery slope can send us careening down another. There were nearly 5,000 gun deaths and more than 80 mass shootings by the time 2024 was only six weeks old. We seem helpless to do anything about it.
Government intervention in speech involves the same fear. A common misconception is that any speech is permissible and any attempt to regulate it will send us careening into an Orwellian society.
Even efforts to protect national security cause public recoil against government intervention in speech. After the Department of Homeland Security (DHS) created a Disinformation Governance Board in 2022, the agency was forced to shut it down after only two weeks. It became a victim of disinformation by conservatives who complained the board was a liberal conspiracy to police their speech.
But free speech is not absolute in America. The U.S. Supreme Court has defined unprotected speech to include obscenity, fraud, speech integral to illegal conduct, speech that includes imminent lawless action, true threats, false statements and defamation. The question is whether the law can protect people from these abuses.
On one hand, there are notable recent examples where abusers have been held to account. Writer E. Jean Carroll won more than $90 million in defamation judgments against former President Trump; noted climate scientist Michael Mann was awarded $1 million last month from two right-wing writers who defamed him. Fox News agreed to a nearly $790 million settlement for defaming Dominion Voting Systems to help perpetuate Trump’s Big Lie in the wake of the 2020 election. In 2022, a jury issued a $965 million judgment against right-wing talk show host Alex Jones for spreading cruel disinformation about the massacre at Sandy Hook Elementary School. And more than 40 states, municipalities and citizen groups have sued ExxonMobil for damages because of its campaign to mislead Americans about the connection between fossil fuels and global warming.
However, few ordinary Americans have the wherewithal to sue. It took Mann 12 years and Carroll more than four to win their lawsuits. Abusers are emboldened by confidence that their victims lack the resources or will to fight back. In countless other cases, the internet allows abusers to remain anonymous.
The New York Times reports that Trump and his allies have conducted “a coordinated effort to block what they viewed as a dangerous effort to censor conservatives.” Yet, if the far right didn’t engage in so much disinformation, it wouldn’t have to fear regulation.
If Thomas Jefferson were alive today, he might conclude that a functioning democracy has become impossible in the United States. “Whenever the people are well-informed, they can be trusted with their own government,” he wrote in 1789. Today, citizens are subject to so much misinformation and disinformation that the upcoming election will be a Jeffersonian test of whether the American people can be trusted with democracy.
To paraphrase another founder, James Madison, if we were all angels, there’d be no need for government. In this case, mores, the social contract and good manners no longer discourage unprotected speech. Reasonable government intervention is justified.
We should start by confronting some tough questions. For example:
Why is there no plan to counter these abuses? Simon Rosenberg, a Democratic Party strategist, told The New Republic: “Our discourse has been heavily manipulated over a long time. We are not even having a conversation about it. … There is no effort by people to come to terms with how the discourse is being manipulated and poisoned, either at the governmental or political level.”
Shouldn’t we hold social media platforms responsible for their content? Current law exempts social media companies from liability for users’ posts. Lately, several of the companies have backed away from moderating content voluntarily. One skeptic about changing the law asks, “Who is to say, ‘this content is good and this content is not good’ before it gets to the public?” The Supreme Court already answered that question by defining unprotected speech.
Why is the Federal Communications Commission (FCC), in the words of former chairman Alfred Sikes, “all hat and no cattle” when it comes to cable news? Should it not crack down harder against the licensing of broadcast stations that violate the public interest requirement? Can the FCC or Congress reinstate the Fairness Doctrine and apply it to cable as well as broadcast stations?
Can the courts provide options for more rapid and less expensive adjudication of unprotected speech? And shouldn’t judges throw out lawsuits intended to harass people engaged in protected speech, including the so-called SLAPP lawsuits oil companies file to intimidate critics?
Should other abuses be classified as unprotected speech? What about efforts by Trump and his supporters to derail justice by threatening or maligning judges and jurors? Should deep-fakes of prominent people be considered identify theft?
We have arrived at the intolerable situation where Americans are routinely defamed and terrorized by abusive speech. That’s the slippery slope that should worry us.
William S. Becker is co-editor of and a contributor to “Democracy Unchained: How to Rebuild Government for the People,” and contributor to Democracy in a Hotter Time, named by the journal Nature as one of 2023’s five best science books. He previously served as a senior official in the Wisconsin Department of Justice. He is currently executive director of the Presidential Climate Action Project (PCAP), a nonpartisan climate policy think tank unaffiliated with the White House.