Actually, Tim Walz, the First Amendment Does Protect Misinformation and ‘Hate Speech’

A fter Vice President Kamala Harris picked Minnesota governor Tim Walz as her 2024 running mate, a video made the rounds showing Walz saying in an interview that there is “no guarantee to free speech on misinformation or hate speech, and especially around our democracy.”

While such a sentiment has become disturbingly popular with some Americans and policy-makers like Governor Walz, it is incorrect. The First Amendment does guarantee free speech when it comes to both misinformation and hate speech. Individuals and public officials may detest and condemn such speech, and platforms may choose not to carry it, but to insert the government into regulation of such expression would both set a troubling precedent and undermine our current First Amendment principles in ways that should concern Americans across the political spectrum.

While policy-makers and individuals may think they are protecting the public from potential harm or propaganda, laws that would allow the government to regulate misinformation would quickly risk trampling on the ability to discuss a wide array of political and social issues. The consensus about what is true regarding sensitive topics such as abortion, the Middle East, and the Covid-19 pandemic can change rapidly. In terms of misinformation, so much of what is called “misinformation” is simply information that individuals may disagree about or that may not be fully understood.

While Walz is right that we have laws surrounding specific concerns like voter intimidation and voting interference and that prohibit defamation, the vast majority of speech — even what some may consider detestable — is generally protected, regardless of whether it is true.

Maybe in the future, our understanding will change, and long-held truths will be proven wrong. Even when something is certifiably false, we protect the right of people to be wrong (something for which Walz should be thankful in this case). Engaging with ideas can help us understand one another even when we disagree and may help us develop more thorough understandings of complicated issues and the often-gray areas of fact and belief. The government’s becoming the official arbiter of truth would risk silencing voices and stifling legitimate debate on important issues where there is not always clearly a right answer.

Similarly, “hate speech” is generally protected by the First Amendment. There is no universally agreed-upon definition of hate speech, and certainly not in an American context.

The Supreme Court famously confirmed in 1977 that neo-Nazis had a right to peacefully protest in Skokie, Ill., a town with a substantial number of Holocaust survivors. The American Civil Liberties Union defended the neo-Nazis because, in the words of executive director Aryeh Neier (who as a child fled from Nazi Germany), “the chances are best for preventing a repetition of the Holocaust in a society where every incursion of freedom is resisted.”

It is important to remember that power to regulate speech could be used by those with whom you disagree just as much as those with whom you agree. Walz and Harris’s opponents certainly have their own ways they’d like to use such powers. Senator J. D. Vance, now the Republican VP candidate, has called for banning porn and seizing the assets of foundations that support progressive causes. Former president Donald Trump has regularly criticized libel laws that make it hard to punish his political opponents for what he perceives as false statements made about him. Giving government power to broadly censor “bad” speech should give all Americans pause.

It the midst of major social debates over contentious issues, suppressing speech that we find wrong and hateful is counterproductive to making progress as a society. Free speech, including potentially misleading or offensive speech, isn’t a threat to democracy. Rather, it is essential for democracy.

David Inserra is a fellow for free expression and technology at the Cato Institute. Jennifer Huddleston is a technology-policy research fellow at Cato and an adjunct professor at George Mason University’s Antonin Scalia Law School.