I have been commenting on the ongoing challenges to the presidential election. While I have not seen evidence of systemic voter fraud, there are hundreds of affidavits alleging localized fraud, including cases of deceased persons voting. The challenges should be heard and the evidence should be examined. However, the most worrisome response came out of Michigan this week where Michigan Attorney General Dana Nessel’s Office of Public Information threatened a website, Big League Politics, with criminal prosecution if it did not take down a video of alleged voting fraud. The video may indeed be misleading or false. However, the threat of criminal prosecution by the Michigan Attorney General’s office is a chilling escalation of the crackdown on free speech in this country and the calls for censorship on the Internet.

We have been discussing the calls from top Democrats for increased private censorship on social media and the Internet.  President-elect Joe Biden has himself called for such censorship, including blocking President Donald Trump’s criticism of mail-in voting. Recently, Bill Russo, a deputy communications director on Biden’s campaign press team, tweeted that Facebook “is shredding the fabric of our democracy” by allowing such views to be shared freely.

The calls mirror the trend in Europe where countries like France, Germany, and England have criminalized speech with ever expanding examples of prohibited expressions and views.

The Cease and Desist letter instructs the site to remove all posts, links, and anything similar immediately which correspond with #LeakDetroit.” Assistant Attorney General Danielle Hagaman-Clark states that “failure to comply will result in criminal prosecution.” There is no citation for the penal code provision that makes such an allegation or posting a crime, a standard element in such notice letters.

The letter refers to  false information about how poll workers counted challenged votes prior to 2020 and whether challenged ballots could be taken out of the official count. Again, the claims could well be misleading or false, but I fail to see the ability of Nessel to criminalize such assertions. Political campaigns are often replete with exaggerated claims on both sides.

As have previously discussed how the Supreme Court in cases like United States v. Alvarez has repeatedly found such criminalization of alleged speech to be unconstitutional. The position reminds me of the English view that speaking ill of the government must be prohibited. As the Court held in Alvarez:

The theory of our Constitution is “that the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.

Justice Breyer noted in his concurrence in Alvarez that our constitutional protections comport with “the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.” Likewise, in New York Times v. Sullivan, the Court noted that “[the] erroneous statement is inevitable in free debate.”.

Lord Chief Justice John Holt, in a 1704 sedition trial, said it was absurd that speakers and writers “should not be called to account for possessing the people with an ill-opinion of the government, no government can subsist.  For it is very necessary for all governments that the people should have a good opinion of it.”

The calls for censorship and criminalization of speech have become a rallying cry for liberals in the United States. Even academics now embrace speech codes and censorship. The erosion of free speech on social media and the Internet includes calls from leading Democratic leaders for years to implement private censorship of political speech, a view supported by academics who have declared that “China was right” about censorship.  The concerns over Nessel’s threat are magnified by the fact that the allegation challenges the results of the elections favoring her own party and political allies. If such a posting is a crime, what would stop Nessel from prosecuting the New York Times or Fox News for such videos or alleged whistleblower evidence?

The threat of criminal prosecution should be immediately withdrawn by Nessel and her office.