Democrat John Kerry, who ran unsuccessfully for the US presidency in 2004 and was Barack Obama’s Secretary of State (2013-17), has identified the First Amendment as a “major block” preventing the government from “hammering” disinformation “out of existence”.
Kerry’s comments came 45 minutes into a World Economic Forum panel on Green Energy investing and sustainable development, held during its week of “sustainable development impact meetings,” a series of panels primarily focused on climate change.
Responding to a question from the audience, Kerry, who was appointed as President Biden’s Climate Envoy in 2021, said: “It’s really hard to govern today. The referees we used to have to determine what’s a fact and what isn’t a fact have been eviscerated to a certain degree. So people self-select where they go for their news and for their information.”
He continued: “You know there’s a lot of discussion now about how you curb those entities in order to guarantee that you’re going to have some accountability on facts, etc.
“But look, if people only go to one source, and the source they go to is sick, and, you know, has an agenda and they’re putting out disinformation, our First Amendment stands as a major block to be able to just, you know, hammer it out of existence.
“So what we need is to win the ground, win the right to govern, by hopefully winning enough votes that you’re free to be able to implement change.”
The First Amendment to the US Constitution is a foundational part of the Bill of Rights, which protects freedom of speech, freedom of the press, freedom of religion, freedom of assembly, and the right to petition the government.
So-called ‘misinformation’ and ‘disinformation’ retain the basic characteristics of speech, which means that unless they fall into a strictly limited set of categories, including defamation and fraud, they are protected from censorship under the First Amendment.
The Supreme Court has previously recognised that while false statements may not add much value to the marketplace of ideas, granting licence to the government to prohibit false speech would also ‘chill’ more valuable speech, meaning it would cause people to self-censor out of fear of violating the law.
Consequently, the First Amendment creates “breathing space” protecting the false statements and hyperbole that are “inevitable in free debate”. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The Court has suggested the government may not regulate false ideas, and even false factual statements receive some constitutional protection.
However, in recent years, government officials and Big Tech intermediaries have been accused of colluding behind the scenes to censor online information deemed ‘harmful’.
The recent case State of Missouri v. Biden (now known as Murthy v. Missouri), revolves around the successful efforts of government officials who used their positions to convince social media platforms to censor speech that challenged the government’s viewpoint on controversial topics including Covid-19, vaccinations, vaccine mandates, and elections. (Twitter Files journalists Matt Taibbi and Michael Shellenberger filed an amicus brief in support of Missouri et al. that provides background information.)
Last year, a three-judge panel for the Fifth Circuit Court of Appeals upheld an injunction that prohibits the government from pressuring social media platforms to de-escalate or remove speech that the government identifies as misinformation or disinformation.
Earlier this year, however, the US supreme court struck down that ruling, in a decision that concluded the government’s communications with social media platforms about alleged ‘misinformation’ violated the First Amendment. The court’s decision effectively permits government official to continue calling on Big Tech intermediaries to censor disfavored online messaging.
