This was originally a social video here.
That’s Minnesota Governor Tim Walz in an interview last year that’s being resurfaced now that he’s the presumptive Democratic nominee for Vice President. And for good reason, critics are rightly pointing out that he’s flatly wrong when he says (at roughly 3:40 in the video) that free speech doesn’t protect misinformation or hate speech.
The important thing that American free speech doctrine protects is unpopular speech. And unpopular speech is unpopular typically because it is considered misinformation or hate speech by someone.
So we’ve built up statutes and rulings that give people the right to say unpopular things. Free speech absolutely protects misinformation. That’s the legal side, and what Walz invokes when he says “free speech.” But I think we misunderstand the different ways we can police speech, and how complicated that is.
For example, if you go back to the 10 minute interview that 8-second clip is from, which I watched in entirety, the actual question Walz is answering is what “penalties” can be enacted for misguiding voters on where their polling place is, or what day the election is.
Here there are federal and often state rules against so-called voter intimidation, which can include misguiding particular people — especially if it’s done by those running for office or election officials. For example, if a campaign sent a mailer to voters likely to support the opposition with the wrong election day, that’s not free speech, that’s probably illegal.
Because of famed Section 230, social media companies can’t likely be held legally responsible if someone posts election misinformation on their platforms. But, they can make editorial choices. Just like a newspaper doesn’t have to publish every letter to the editor, a social media company can decide in its own terms of service that it will remove certain kinds of speech.
The tension we’ve seen on social platforms is that they want to avoid taking editorial oversight — cause it’s so hard. In this way, they want to be like a telephone company. Verizon does not police what two people say to each other in a phone conversation over their network.
But those social platforms also want to avoid the regulatory scrutiny that telephone companies have. So they’ve wanted it both ways, but it seems obvious to me that of course they’re closer to editorial brands — which must make decisions about what messages they’re OK elevating.
Many have decided outright election misinformation is not OK. It’s legal free speech, but not welcome on their platforms.
So it’s true that Tim Walz got it wrong. There IS a guarantee to free speech on misinformation and hate speech. You cannot go to jail for standing on the street and saying untrue things.
But you can lose your job. You can get booted from a social media company or denied inclusion in some news outlet. Free speech guarantees you the right to say what you want. It doesn’t guarantee you an audience.