We have often discussed the embrace of censorship by the left and many Democratic politicians, including President Joe Biden. However, the most distressing aspect of this trend has been the support of many in the media. That erosion of support for free speech was on display this week in a tweet from a New York Times’ reporter. Sheryl Gay Stolberg  said that this week’s effort by Democrats to censor Democratic presidential candidate Robert F. Kennedy Jr. “raised thorny questions” about whether misinformation is protected speech. The statement shows a breathtaking lack of understanding of the First Amendment as well as a lack of fealty for free speech values.  There are no “thorny questions” over the censorship of this speech, because misinformation is unquestionably protected under the First Amendment.

The media’s embrace of censorship was on display on various channels after the recent opinion finding that the Biden Administration had violated the First Amendment in “the most massive attack against free speech in United States history.” However, the New York Times immediately warned that the outbreak of free speech could “curtail efforts to combat disinformation.” Yet, no one expressed it more simply and chillingly than CNN Chief White House Correspondent Phil Mattingly who stated that it “makes sense” for tech companies to go along with government censorship demands.

The most recent controversy arose after Democratic members responded to a hearing on censorship by trying to censor Kennedy.  Not only did members object to his being able to discuss his censorship on social media, but Rep. Deborah Wasserman Schultz (who has led previous attacks on witnesses on censorship) sought to move the hearing into executive session so that the public could not hear what he had to say.

What followed were unrelenting attacks on Kennedy who was repeatedly asked questions by Wasserman Schultz and others but then denied the ability to respond. As in the past, Democratic members asked insulting questions and then reclaimed their time to prevent the witness from defending himself.

Democratic members made clear that they supported barring people from social media and even congressional hearings for opposing views on Covid. One member told Fox News “I am not afraid of anything that he would say, I just do not want to hear him.”

After watching this abusive treatment, the only “thorny question” for Stolberg was whether Kennedy’s speech and misinformation in general has any protection under the First Amendment.

Misinformation is generally defined as information that is false, but the person who is disseminating it believes that it is true. In other words, others believe that a speaker is mistaken. Yet, Stolberg believes that such mistaken beliefs may fall outside of the First Amendment. Of course, this leads to the Zen-like question of whether the mistaken belief that the First Amendment does not protect mistaken beliefs is itself protected. But down that road lies either enlightenment or madness.

Note that Stolberg was not discussing whether social media companies can legally censor speech. While that is a denial of free speech, these companies often note that they are not covered by the First Amendment as private entities. (In reality, that is not accurate since they can be agents of the government, which I previously discussed in my testimony in the first of these censorship hearings).

Stolberg was discussing whether misinformation in general is protected under the First Amendment.

What makes the statement chilling is that it is part of a growing chorus from the left suggesting that hate speech and now disinformation may be exceptions under the First Amendment. Indeed, when I testified before this same committee,

I was taken aback by the opening statement of the committee’s ranking Democrat, Del. Stacey Plaskett (D-V.I.). Besides opposing an investigation into the role of the FBI and other agencies in such censorship, Plaskett declared that “I hope that [all members] recognize that there is speech that is not constitutionally protected,” and then referenced hate speech as an example.

Hate speech is indeed a scourge in our nation, but it is also protected under our Constitution. Yet many politicians and pundits are using this false constitutional claim to defend potentially unconstitutional actions by the government.

Recently, Sen. Ben Cardin (D-Md.), who is a lawyer, said that “if you espouse hate … you’re not protected under the First Amendment.” Former Democratic presidential candidate Howard Dean declared the identical position: “Hate speech is not protected by the First Amendment.”

Even some dictionaries now espouse this false premise, defining “hate speech” as “Speech not protected by the First Amendment, because it is intended to foster hatred against individuals or groups based on race, religion, gender, sexual preference, place of national origin, or other improper classification.”

Now the New York Times is posing the question of whether misinformation is protected. It is. When false information is used to steal money, it is called fraud. Speech can also be the basis of other crimes like conspiracy. However, simply stating something that others view as misleading or wrong is protected under the First Amendment.

The First Amendment does not distinguish between types of speech, clearly stating: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

It does not say “good speech” or “factually correct speech.” It says speech. Accordingly, the Supreme Court has declared that even lying about military honors is protected. The Supreme Court struck down the Stolen Valor Act. In United States v. Alvarez, the Court held 6-3 that it is unconstitutional to criminalize lies — in that case involving “stolen valor” claims.

Likewise, spewing hate-filled lies is protected. In Snyder v. Phelps, also in 2011, the Court said the hateful protests of Westboro Baptist Church were protected.

Yet, at the New York Times, the most “thorny issue” was not the effort of Democrats to censor a witness at a censorship hearing, but whether his speech has any protection under the First Amendment.

Ironically, the government could have raised this “thorny issue” when the New York Times published the Pentagon Papers, claiming that it was just “misinformation” that was harmful to the public. While that was a prior restraint case, would the government have had a stronger case if it argued that the Times was publishing information that it thought was true but was misleading or false?

What about the disinformation, misinformation, and malinformation spread by the New York Times in the last few years on issues like Covid-19. For years, scientists faced censorship for even raising the lab theory as a possible explanation for the virus. Their reputations and careers were shredded by a media flash mob. The Washington Post declared this a “debunked” coronavirus “conspiracy theory.” The New York Times’ Science and Health reporter Apoorva Mandavilli was calling any mention of the lab theory “racist.” Are Mandavilli’s writings unprotected?

Yet, it is not a thorny issue when a Democratic member admits that she sought to prevent Kennedy from speaking publicly because “I just do not want to hear him.”

What is so troubling is how the “legacy media” has jettisoned the most noble aspects of its legacy and has become that enabler of censors.