My Pensacola lecture: why the First Amendment matters, and why I fear for its future

When and why did America lose its taste for free speech?

(Note: If you saw the livestream, you’ll realize I didn’t stick exactly to this text. I don’t like reciting prepared notes - I feel like an actor in my own play. So I tend to riff.

Also, I hadn’t finished writing the speech when I started speaking, so the last bit, when I talked more specifically about my case, was freeform. Still, I decided to publish here what I had written before I started. I think/hope it captured the essence of some crucial events of the last few years. Hope you enjoy it.)

—

FIRST OF TWO PARTS

Thank you all for coming, and thanks to Professor David Ramsey for reaching out to me and for the University of West Florida for standing up for academic freedom and free speech.

As I mentioned this week on Twitter – I’m going to call it Twitter, not X, because I’m not sure anyone other than Elon Musk actually calls it X – the UWF is the first and so far only public university in the United States to invite me to speak in the four years since I became known as a lockdown and then mRNA vaccine skeptic.

It’s not like a lot of private schools have stepped up either.

The only other institution of higher education that has had me speak since 2020 is Hillsdale College, the Michigan school known for its conservative views. I was glad to visit Hillsdale, but it is in no way representative of the vast majority of American higher education.

--

(And Unreported Truths is in no way representative of the vast majority of American journalism. Which is why you like it. For 20 cents a day, you can support it!)

—

Perhaps even more stunning, UWF is the first university to invite me to speak about what happened to me in 2021 and 2022, when pressure from White House and senior Pfizer officials forced Twitter to ban me – and when I then forced Twitter to reinstate me after successfully suing the company in federal court in San Francisco.

My reinstatement came before Elon Musk bought Twitter and reinstated many users who had been banned for their heterodox – usually conservative or anti-lockdown or anti-vaccine – views.

As far as I know, I am the only person ever to have forced a social media company to reinstate me after a lawsuit over a ban. As I’ll discuss later, the federal law known as Section 230 gives companies like Twitter and Facebook nearly complete control over their users and what articles, posts, and pages they display, without any corresponding liability for the choices they make.

Few people can say they’ve done something one-of-a-kind. But Berenson v Twitter did in fact have a unique outcome, my reinstatement, thanks in part to the great efforts of my lead lawyer, James Lawrence.

I mention this not to brag – okay, I’m bragging a little – but to point out that its outcome throws into high relief the sad fact that American colleges and universities no longer truly believe in free speech.

Put Covid or the lockdowns or the mRNAs aside. At a time when social media outlets are the primary sources of news and information for most Americans and many people worldwide, the question of social media censorship is vitally important. The Supreme Court is hearing two cases on it this term. Yet colleges and universities are afraid even to let me speak on the topic.

--

—

But, obviously, it’s not just me.

The specific issues that Section 230 raises are vital. So are questions of whether, if ever, government officials should push social media companies to censor users or lawful posts. I don’t mean child pornography or other content that is already illegal offline under current laws, but opinions and reporting and “misinformation” that the First Amendment prevents officials from directly banning, punishing, or censoring.

But as important as those questions are, before I talk about them I want to highlight an even more basic and worrisome issue.

Too many Americans, especially younger Americans, especially those on the left, no longer believe in free speech or the First Amendment. I’m not exaggerating, unfortunately.

My primary form of expression these days is my Substack. For those of you who haven’t heard of Substack, it is an ad-free subscription platform with an avowed commitment to free speech. Both liberal and conservative writers use it, and in fact its most popular writer is a liberal historian from Maine.

But it is probably best-known for hosting journalists like me and Matt Taibbi – the former Rolling Stone writer who famously called Goldman Sachs a “great vampire squid wrapped around the face of humanity” but who these days is called conservative because he, like me, does not endlessly parrot the elite media consensus.

Anyway, my Substack is called Unreported Truths. It has about a quarter-million subscribers. And last summer, I wrote a piece headlined for it “The scariest poll you’ll see this summer.”

These were the article’s first four paragraphs:

A majority of Americans - and an overwhelming number of Democrats - no longer support First Amendment protections for free speech.

The government should restrict “false” information online, even if doing so blocks people from “publishing or accessing information,” 55 percent of Americans said in a large poll released Thursday. Only 42 percent disagreed.

The antipathy to free speech represents a sea change in attitudes in just five years. It is driven by a powerful new hostility to First Amendment rights on the left.

In an identically worded poll five years ago, Democrats and Republicans favored free speech online by roughly 3 to 2 margins. Today, Republicans still favor the First Amendment by about that much. But Democrats have turned against it by even more.

—

(The piece goes on a while longer. Take a break and subscribe!)

--

The poll was conducted by the Pew Research Center, a non-partisan Washington think tank, and covered over 5,000 adults. It is capturing a real trend, one that is visible not just in polls but in the backlash that many conservative speakers face when they try to speak on campus.

Last year, for example, students at Stanford Law School – law students, who should understand the value of the First Amendment better than anyone else on campus – shouted down a federal judge whose views they didn’t like. When a Stanford diversity dean – yes, that’s an actual position – appeared on the scene, she didn’t back the judge. Instead, she instead lectured him, asking, “Do you have something so incredibly important to say?” and, infamously, “Is the juice worth the squeeze?”

This was far from an isolated incident.

Adults, particularly left-leaning young adults, truly believe they have the right not to hear words or concepts that might bother them. They refer to “microaggressions” and “unsafe environments.”

This attitude pervades American universities, and I believe it is the primary reason for the pushback to the Congressional hearing in December when the presidents of Harvard, MIT, and the University of Pennsylvania refused to say that students who called for genocide against Jews might face punishment. Universities that take it upon themselves to police speech aggressively appeared to be making an exception for anti-Semitic rhetoric.

--

But it’s not just on campus, and it’s not just students.

Perhaps the most stunning detail of the Stanford incident is that the “diversity dean” had previously been a lawyer for the American Civil Liberties Union. Even the ACLU no longer seems to understand the value of unfettered speech and debate.

Trying to ban “microaggressions” and “hate speech” and “harassment,” words targeted at individuals, is tricky enough. At least we have some precedent for those efforts, which are important offline as well as online. Not even the most ardent First Amendment advocate thinks the Constitution protects all speech. I can silently protest outside your home, but if I threaten to burn it down, or spend six hours blasting music so loudly you can’t hear, I may face civil or criminal consequences.

So as troubling as the “microaggression” fight may be, the First Amendment faces an even more powerful threat in the the push against “misinformation.”

What is misinformation, anyway?

Sometimes it’s defined as “false” information, sometimes as “inaccurate” information, sometimes merely as “misleading” information – though, even more confusingly, the people making these definitions have also come up with another term, “malinformation,” which they call true but misleading information. (Almost no one, by the way, has ever heard of “malinformation,” and my Microsoft Word spell-checker doesn’t even recognize it as a word.) Then there’s “disinformation,” which is purposely false information spread with the intent to deceive – what earlier generations called propaganda.

I would argue the First Amendment generally protects even disinformation, unless the person spreading it is doing so in order to profit from it, in which case it’s fraud. In other words, Americans are allowed, broadly, to lie.

But the fight is not really over “disinformation” – intentionally false statements – but misinformation. Which, again, proves squishier and squishier the harder one tries to define it. In fact, I would argue that the most honest definition of misinformation is: Facts or opinions or data or reporting that the person who is using the word “misinformation” disagrees with or does not like.

—

(Miss Information isn’t pretty.)

—

To take a concrete example.

Both these statements are true: “the mRNA Covid vaccines were rushed out after only months of human testing” and “the mRNA Covid vaccines are the product of decades of research.” But a vaccine advocate would call the first “misinformation” and a skeptic would say the same of the second.

The solution for those of us who believe in free speech is to let advocates and opponents, of the Covid vaccines or anything else, talk to each other, or past each other, or at each other – while the world listens, or doesn’t.

For a long time, that position was the American consensus, if anything supported more broadly on the left than the right. No more. And, again, it is largely the left that has grown wary of open debate.

The elite media sometimes claims the move away from free speech is bipartisan, by pointing to conservatives who have pressed for what it calls “book bans” in libraries.

This is, well, misinformation. Libraries and schools are for the most part simply being asked to not display these books openly or to restrict them by age. As a parent of young children, I don’t have much problem with that. I can remember when Playboy was on the top shelf of convenience stores, wrapped in plastic.

In a few cases, efforts may be made to force libraries not to merely to restrict distribution but not to carry these books at all. I don’t support those efforts.

But even if they succeed, even if conservative communities decide they do not want public money – and libraries are funded with tax dollars, a fact librarians sometimes forget - spent on books they view as antithetical to their values, these books are NOT being banned. They remain openly promoted and available for sale to anyone who wants them. And of course their possession remains legal.

To call a book that contains an illustration of oral sex banned because a librarian has been told to keep it in a place where preteens cannot see it strikes me as a near-Orwellian misuse of language.

—

(It’s $24.99? That’s obscene!)

--

In contrast, the left’s efforts to restrict speech range far beyond a handful of books aimed primarily at minors. And they are far more aggressive.

To take one more example outside of social media, in early February a Washington, D.C. jury awarded over $1 million to a climate change scientist who claimed he had been defamed nearly a dozen years earlier, when a blogger wrote the scientist had “molested” data the same way that Jerry Sandusky molested young boys. A second writer then quoted the first and added that some of the scientist’s research was “fraudulent.”

I think we can all agree the Sandusky analogy was crass.

But to be clear, the blogger did not claim the scientist had molested kids – that statement would indeed have been defamatory. Instead, he wrote something over-the-top and nasty. And “fraudulent” probably wasn’t the best word to use, since it can carry specific legal connotations – though it did not really in this case.

But as the recipient of many, many, MANY over-the-top, nasty, and sometimes untrue statements, mostly on Twitter, I can assure you those kind of statements are exactly what our defamation laws are intended to protect.

The United States has always had a high bar for defamation and slander lawsuits, precisely because they are the opposite of what the First Amendment intended. They force the government into the role of policing and suppressing speech.

Even more stunning than the Washington verdict was an opinion piece run by my old employer, The New York Times, two weeks later. In it the scientist and his lawyer wrote that they hoped the $1 million verdict “sends a broader message that defamatory attacks on scientists go beyond the bounds of protect speech and have consequences.”

They added:

It is in the context of this broader war on science that our recent trial victory may have wider implications. It has drawn a line in the sand. Scientists now know that they can respond to attacks by suing for defamation.

In other words, the scientist and his lawyer were calling openly for more suits. And by running this opinion piece, the Times was walking to the line of endorsing that call.  Yes, our most prominent newspaper was not so subtly suggesting it agreed the courts should become more involved in policing speech, by threatening money damages against anyone who “attacks” “scientists.”

—

(If by “climate denial” you mean “free speech” or “open scientific debate”)

--

So.

Why have journalists and academics – the very people who should care most about free expression - lost their appetite for free speech? And how did I get caught in its crosshairs?

The simple two-word answer is Donald Trump.

Trump’s election in 2016 set our elite institutions into a spiral of anger – not merely at Trump, but at the Americans who had the temerity to resist Hillary Clinton’s coronation and elect him instead.

But Trump is not the only answer.

After all, 2016 wasn’t just the year of Trump. It was the year of Brexit. It was the year when elites on both sides of the Atlantic fundamentally lost their ability to set the so-called Overton window, the acceptable parameters of political discussion. No one serious in Washington or New York or Los Angeles or San Francisco – Republican or Democrat - wanted Donald Trump elected in 2016. And no one serious in London, Tory or Labor, wanted Britain to pull out of the European Union.

And the elites, correctly, saw large social media sites, Facebook and Twitter in particular, as the largest single engine of their loss of control.

Homer Simpson once famously called alcohol as “the cause of, and solution to, all of life’s problems.” Maybe so, but social media is coming fast down the stretch. The 2016 election set the stage for increasingly open attacks on the bandits on social media who refused to listen to their betters in academia and the media.

--

But it was Covid, four years later, that proved to the elites how powerful and dangerous Twitter and Facebook had become to them.

(END OF PART 1)