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I have revered the First Amendment since I was a college student studying journalism. It was the era when young people were drawn to journalism as a form of public service by the example of Washington Post reporters Bob Woodward and Carl Bernstein, who had exposed President Richard Nixon’s crimes in Watergate.
Today, the First Amendment and its principles of free speech and free press are under assault from multiple quarters. Some college students want censorship of professors or speakers who injure their feelings. In Bloomington, some left-wing activists have demanded the city government expel a farmers market vendor because of her ignorant and offensive (but entirely lawful) views about race. And in the White House, a failed president labels as “enemies of the people” the journalists who are documenting and exposing his corruption and abuse of power.
The First Amendment’s free-speech guarantee serves several purposes. It prevents political factions from using government power to punish their enemies. It helps assure a free flow of ideas and debate; this, in turn, supports the democratic process by holding government officials accountable.
Lately, though, I’ve begun to lose faith in what I once believed about the First Amendment—namely the theory that we give robust protection to free speech because, in the marketplace of ideas, truthful speech will drive out speech grounded in ignorance or lies.
Writing more than a century before our Constitution, the English poet John Milton expressed this idea in his essay “Areopagitica,” a polemic against censorship. Let truth and falsehood grapple, Milton said, and truth will always win. “Whoever knew Truth put to the worse,” Milton wrote, “in a free and open encounter?”
But Milton did not envision a political ecosystem where, in the words of Harvard Law School internet scholar Yochai Benkler, media outlets “compete on political purity and stoking identity-confirming narratives,” and politicians or commentators who focus on verifiable facts “are abandoned or vilified.”
Milton never saw Fox News, whose hosts spread false narratives and create diversions from the truth with the practiced ease of skilled professionals. Milton never met Donald Trump and the mediocrities who surround him, who all lie brazenly and, when caught, fall back on the old game of, “I’m rubber, you’re glue.”
Recently, I appeared on local radio discussing Trump’s possible impeachment with an Indiana Republican lawmaker who said his guiding stars are “truth, facts, reason and logic.” He then recited a story—fabricated by conservative media—about “known corruption that everybody has acknowledged” involving Joe Biden and the Ukraine. He also declared that Special Counsel Robert Mueller’s investigation had “turned up absolutely nothing.”
Both assertions were demonstrably false, as anyone who consumes real news outlets would know. Yet Trump is getting a liar’s dividend by inventing stories about Biden that are repeated by his propagandists. The stories are debunked by credible journalists, yet millions of people (like my friend the GOP lawmaker, whom I prefer to believe was not intentionally spreading misinformation) accept them without question.
As for the Mueller investigation, a statement signed by more than 1,000 former federal prosecutors concluded that Trump’s actions would, but for a president’s immunity from prosecution, “result in multiple felony charges for obstruction of justice.” Yet again, millions of people believe there’s nothing there, simply because Trump and his lackeys say so.
We might take comfort from the fact that the millions who believe such lies are still a minority in this country, albeit a sizable one. Still, the assumption that truth prevails over falsehood in the marketplace of ideas seems more and more like a comforting theory that does not actually withstand encounter with reality.•
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Sanders is professor of law at the Indiana University Maurer School of Law in Bloomington.
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Steve one question: How is that in the past 3+ years as reported by the MSM is Trump the only one in DC that has done anything wrong? Unprosecuted scandal of the day is wearing out it’s welcome.
Professor Sanders – Thanks for your sharing of the Agenda exposed by the public servant with whom you raised the Perspective given by that individual’s assessment of Truth, Facts, etc..?? As a Proud Alum of IUB – ’69 and the School of Business (Long before it marketed the site to the Kelley contribution), I was taught the Art of Accounting/Auditing by a Professor who retired after 35+ years and was a stanch conservative member of the Republican party. He was and is one of the three Most important men in my life! (My father and high-school coach being the other two.) He’s retired and lives in that Bastion of Blind allegiance aka – The Villages of Fl) In 2017, on his way back to his Fl home from Indy, he stopped at my home in SoIN to watch some IU Football with me. While enjoying those special moments together, I ask him if the current Occupant of the WH would have passed his Accounting courses at IU? His Only response – “The Republican Party is dead!” After a decade as an Auditor with two national CPA firms and three fraud audits during that tenure – Including a RICCO audit – I am Totally on Board with his assessment!!