AP
The most consequential issue on the ballot this November is the fate of free speech.
At Donald Trump’s campaign rally Saturday, Tesla CEO Elon Musk leaped on the stage and urged the nation to support the former president as the free-speech candidate.
It’s “the bedrock of democracy,” Musk proclaimed — as he warned that “the other side wants to take away your freedom of speech.”
That’s true: Kamala Harris and Tim Walz want government and its proxies to muzzle us, limiting what we can post on social media and censoring whatever government functionaries deem “misinformation” or “hate” — and a disturbingly large number of Americans say they agree.
But the Constitution’s framers understood the danger of making government the arbiter of what the people can hear or read.
That’s why the First Amendment bars officials from “abridging the freedom of speech, or of the press.”
Since the mid-20th century, the Supreme Court has consistently struck down government attempts to silence speech — even speech that’s divisive, untrue or hateful.
In 1949, Father Arthur Terminiello, a communist, was arrested in Chicago for denouncing racial groups in a hate-filled speech, based on a city ordinance that banned “speech that stirs the public to anger.”
But the Supreme Court overturned his conviction, ruling that “the vitality of civil and political institutions in our society depends on free discussion.”
The court added that speech “may indeed best serve its high purpose when it induces a condition of unrest . . . and stirs people to anger.”
That expressly includes hate speech.
In 1969, in Brandenburg v. Ohio, the justices overturned the conviction of a Ku Klux Klan leader who uttered antisemitic and racist comments during an organizational meeting. Ohio could only outlaw speech, the court ruled, if it threatened imminent lawlessness.
Two decades later, in 1989, the court ruled that a Texas man could not be punished for burning an American flag.
“If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable,” Justice William J. Brennan Jr. wrote in his majority opinion.
Even misinformation and lies are protected from criminal prosecution by the First Amendment, the court ruled in 2012, when it invalidated a federal law making it a crime to falsely claim military honors.
“Falsity alone may not suffice to bring the speech outside the First Amendment,” the justices concluded.
So don’t worry, Gov. Walz. Despite the stolen-valor accusations against you, the Supreme Court has your back.
It’s not the government’s job to shield the public from falsehoods, the court explained in that case, United States v. Alvarez.
“Our constitution’s tradition stands against” the need for a “Ministry of Truth,” Justice Anthony Kennedy wrote, giving a nod to George Orwell’s “1984.”
And political correctness, too, must take a back seat to freedom of speech, the court ruled in 2017, when it struck down a US Trademarks Office regulation that blocked Simon Tam and his Asian-American band members from calling themselves “The Slants,” which the agency had rejected as “disparaging.”
Few reading these decisions will like all of them. But that’s the point.
Freedom of speech doesn’t benefit any one group: It’s an even-handed principle that keeps democracy alive.
The racist KKK member, the communist and the anti-American flag burner are protected so that all of us can be confident of the ability to express our views fearlessly.
But while the First Amendment exists to protect unpopular views, more than half of Americans, 53%, think it “goes too far,” according to a poll sponsored by the Foundation for Freedom of Individual Rights and Expression — with Democrats especially opposed.
Walz and Harris, together with President Joe Biden, Hillary Clinton, John Kerry and other Democrats have all come out against free speech — particularly on social media platforms, the 21st century’s public square.
Walz insists there’s no First Amendment protection for misinformation or hate speech — staggering, coming from a former social studies teacher.
In 2019, Harris called on Twitter to deplatform Trump, arguing online expression is a “privilege” and that censorship is necessary to protect democracy.
In office, she and President Biden erected a vast censorship operation that sent White House and agency employees to tell social media executives what “misinformation” and which individuals should be silenced.
Even scientists who questioned the efficacy of masking and vaccines were canceled and posts about their research removed — posts which, in many cases, later proved to be correct.
Facebook, YouTube and Google were pressured into doing the administration’s dirty work, an effort that continues today.
Two states and five individuals sued to stop what the federal district court called this “far-reaching and widespread censorship campaign.”
But in the case, Murthy v. Missouri, the Supreme Court refused to rule on the censorship issue due to “standing,” a legal technicality.
Justice Samuel Alito, disgusted at the court’s punt, warned that the Biden-Harris censorship scheme was “blatantly unconstitutional” — and that democracy cannot survive under a government that suppresses free speech.
Pay close attention to Alito’s admonition.
That is what’s at stake in November.
Betsy McCaughey is a former lieutenant governor of New York.