Duluth News Tribune

Opinion: Who Decides What’s False When Outlawing Free Speech?

September 25, 2023

(Duluth News Tribune)—In Minnesota, it’s now a crime to express the wrong opinion about voting rules.

A law passed in May bans individuals and organizations from sharing information about voting locations, times, qualifications, and restrictions if they intend “to impede or prevent another person from exercising the right to vote” and the information is “materially false.”

But who gets to decide what’s “materially false”? Lawmakers? Bureaucrats? Special-interest groups?

This issue matters to the Minnesota Voters Alliance, which argues that another recent law (which purports to expand felons’ voting rights) violates the Minnesotan constitution. They therefore believe felons are ineligible to vote before they’ve completed their sentences, a statement that the lawmaker behind the speech ban has publicly said would now be a crime.

Under the First Amendment, no official should decide what’s true or false. People have a right to speak freely—and those who hear their message can decide whether or not to believe it. That’s why we at the Liberty Justice Center have teamed up with the Upper Midwest Law Center to file a federal lawsuit against Minnesota’s speech ban.

This is not the Liberty Justice Center’s first time pushing back on speech bans to defend the First Amendment; and the way things are going, we imagine it won’t be the last.

It is not clear if we really live in some great age of misinformation. Eccentrics have always found ways to find each other: Before social media, there were chain emails. And before emails, there were faxed newsletters that spread the opinions of any fool with a phone line.

What is clear is that we live in the great age of misinformation policing, in which self-appointed guardians of truth take it upon themselves to decide just what information you can handle—such that social-media companies ban the nation’s oldest newspaper for publishing accurate information.

We are told this must be done, that America will slide into fascism if we don’t. In response, it is useful to remember what Justice Robert Jackson wrote in 1943 when we were actually at war with fascism: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox.”

Jackson was not soft on fascism. He took a break from his Supreme Court gig to serve as chief prosecutor at the Nuremberg Trials. He understood that we cannot rationalize away constitutional rights simply because it’s convenient in the moment. If we do, that precedent “lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need,” as Jackson also wrote, in 1944.

Living in a free society is hard. It requires that each of us make up our own minds. And frankly, most of us are kinda busy. But that’s no excuse for letting the government make up our minds for us. We must make the effort to decide things for ourselves—even if that means allowing ourselves or our fellow citizens to get things wrong on occasion.

Reilly Stephens is Counsel at the Liberty Justice Center.

Read the article in the Duluth News Tribune here.