Introduction
Opinion: Freedom of speech is destroying America.
More specifically, the way we currently interpret and think about the “freedom of speech” is part of a conglomeration of problems that is slowly unraveling our society and that, if we don’t address it, will result in the loss of the freedom of speech — along with other freedoms. When that happens, the shared values and beliefs that helped America become the greatest country in the world will be unrecognizable in that future society . That’s what I mean by destroyed.
It’s not that freedom of speech is itself responsible. Freedom never hurt anyone. It’s what people do with that freedom, specifically the bad behavior that we prevent ourselves from governing, that is causing damage.
So today I want to challenge something many people take for granted:
That freedom of speech means anyone can say anything without consequences.
That’s a myth, it’s not real. And our society will not survive if we continue to believe that freedom of speech is or should be absolute.
If we want to keep freedom of speech, we need to reform what we think it means.
Myth vs. Reality
The First Amendment says:
“Congress shall make no law… abridging the freedom of speech, or of the press.”
Most people see that and think speech is absolute. There are no exceptions in that sentence.
But here’s the problem, in two parts.
First, that sentence only restricts Congress.
It doesn’t mention the executive branch.
It doesn’t mention state governments or local officials.
It doesn’t mention judges.
It doesn’t mention public school classrooms, or employers, or athletic teams.
It turns out a lot of other situations exist where speech can be censored or punished that are not covered by the First Amendment at all. The First Amendment only protects us against Congress.
A company can end someone’s employment because of something they said or wrote on social media, even if it’s not related to their job. And if you know that and have to censor yourself so you don’t get yourself fired, you don’t really have freedom of speech.
Our freedom of speech is not as strong as we think.
Second, even the restriction on Congress was ignored.
We have laws about defamation, libel, slander, and perjury.
We have laws about fraud.
We have laws against inciting violence and threatening people with violence.
We have laws that say judges can find someone in contempt of court and order them to be jailed immediately.
Judges can even issue suppression orders, also called “gag orders”, to prohibit people from speaking publicly about an ongoing case. A federal law about criminal contempt of court that allows judges to punish people who violate court orders.
These laws are important and useful for keeping the peace, and yet all of these laws are unconstitutional if you compare them against the plain meaning of the First Amendment.
The Constitution says “Congress shall make no law… abridging the freedom of speech, or of the press”… But we did, and we practice something else in reality.
And over time, we’ve grown comfortable living with that contradiction.
When the supreme law of the land says one thing and society practices another, our fundamental rights become negotiable, the application of justice is not consistent, and people stop believing in the rule of law. That’s the reality we’re heading towards.
That’s dangerous for all of us.
A Real Crisis
Now look at where we are.
Public officials can knowingly lie to millions of people. They can even say things that are plainly and obviously not true. No legal consequences because of free speech. Speaking to the public is an official duty, and we shouldn’t prosecute an elected official for doing their duty, some people say.
Candidates can make baseless accusations about incumbents or other candidates. No legal consequences because of free speech. It’s just political, some people say.
Influencers and broadcast media “personalities” can imply wrongdoing without evidence, spread and amplify provably false claims, or make accusations which can never be proven true or false, or they imply things that are untrue by selecting and phrasing their questions a certain way. They don’t acknowledge the lack of evidence, and they talk with certainty as if they are speaking about facts. No legal consequences because of free speech, especially if they just vaguely referred to “them”, “they”, “left-wing” or “right-wing”, and didn’t name anyone specifically. The readers can make the connection but it’s hard to prove in a courtroom.
The result?
We no longer agree on basic facts.
We live in parallel realities.
People are demonized based on lies.
Communities are divided based on misinformation.
Trust in each other and in our institutions collapses.
Freedom of speech depends on a shared commitment to truth and peaceful discourse.
If we allow the freedom of speech to be abused via weaponized dishonesty and hate, we are placing ourselves in peril, because the it’s easier to spread misinformation than it is to counter it, and misinformation can destroy our society and the freedoms that we cherish.
Our freedom of speech allows deliberate and malicious misinformation campaigns to manipulate us into believing things that aren’t true, into taking action to protest things that didn’t happen, and into ignoring things that we shouldn’t ignore.
This isn’t hypothetical, it’s already happening.
We are in crisis.
Why This Matters
A free society cannot function without:
- Individual freedom and responsibility
- Shared facts and values
- Rule of law and impartial justice
When chaos rises, people trade liberty for order and safety.
If speech becomes a tool for manipulation without consequence, the chaos will eventually cause the public to demand heavy-handed control.
If we want to prevent that overcorrection, we need to responsibly define the boundaries ourselves.
The freedom of speech should protect the free exchange of ideas and especially political speech such as dissent and protest and petitions. And it’s common sense that these things are essential for robust democracy.
The freedom of speech should not protect misinformation and hate speech. These are categories of bad behavior that have become a significant threat to society, but we’re not able to enact laws to address them because of the First Amendment.
We have debates now about whether the freedom of speech created by the First Amendment was meant to be absolute or not because it was written concisely, and didn’t explicitly mention any exceptions even though there were already laws about slander and perjury before the American Revolution.
What the founders intended for the freedom of speech, whether they intended it to be absolute or not, is less important than what they intended for the country as a whole, which is to remain free. That part is explicitly written in the Declaration of Independence and the Constitution.
We are living in today’s world and we have to face today’s challenges and also tomorrow’s challenges. These challenges include sophisticated misinformation operations by groups with political, criminal, and commercial interests, deep pockets, and high ambitions.
The freedom of speech that is supposed to protect all of us is being weaponized against us. Our belief in an absolute freedom of speech is a vulnerability that is being actively exploited by our enemies and by morally deficient Americans in pursuit of power and profit without regard to how their actions affect others.
Our belief in an absolute freedom of speech is preventing us from addressing these threats.
If we hold on to the idea that freedom of speech is absolute, we’ll eventually lose that freedom — and others — completely.
The Reform
The reform I’m proposing is simple:
Freedom of speech should be constitutionally defined as the right to honest and peaceful communication.
Instead of merely protecting against Congress making a law, which was ignored anyway, the freedom of speech should protect us against all branches of government and every level of government.
Most of the laws that Congress and the state legislatures have enacted restricting speech have to do with things that are dishonest, violent, or chaotic in nature, and cause harm to others either directly or indirectly.
A simple and powerful reform can bring our modern common sense and the Constitution into alignment, so that the Constitution is not preventing us from enacting laws to govern bad behavior that we know is harmful.
And that will allow us to fiercely protect what must be protected — the right to state your opinion, to introduce facts, to protest, to entertain. If you’re saying something honest and peaceful, you shouldn’t be afraid of any branch or level of government.
The constitutional protection must apply to everyone equally.
However, when someone says something that is not honest or not peaceful, the consequences should vary from nothing to very serious, depending on the situation and the speaker’s intent, just like we do for anything else. First, there would need to be an applicable law. Second, there would need to be an intent to harm one or more people directly or indirectly with the speech. Third, the size of the audience and the harm that was done should be considered. Fourth, the conduct of the speaker over time should be considered.
The same laws and the same constitutional protections must apply to everyone equally. We cannot make exceptions for public officials or political candidates or anyone with a massive public influence including major news and entertainment media companies. If anything, they need to be more responsible for speaking honestly and peacefully, not less. While mistakes will happen, we cannot tolerate deliberate misinformation and hate speech from public officials or the press because it will destroy us.
Because when they knowingly lies to millions of people about verifiable facts, they’re not just expressing an opinion.
They’re harming society.
They’re eroding the shared factual foundation our democracy depends on.
And if we allow our society to disintegrate, the same society that protects all of our rights and freedoms, then we won’t have any rights or freedoms. They’ll be gone — including our freedom of speech.
So instead of pretending speech is absolute — why not make explicit what we already practice? And extend it to cover misinformation and other bad behavior so we can address it effectively and prevent a national disaster.
The reform I’m proposing will help us preserve our rights and freedoms.
How it would work
The existing laws about defamation, perjury, incitement to violence, and so on can stay as they are, but with the reform their status would change to be clearly constitutional. The missing piece is misinformation.
To counter misinformation we categorize speech into three buckets and label it: Opinions, entertainment, and facts.
Opinion is the primary category of speech. When someone is sharing their thoughts or recollection of something, they don’t have to say it’s their opinion, and they don’t have to label it. Unless they’re saying it’s something else like a joke or a fact, it’s assumed to be their own opinion. Labeling opinions is optional. People are allowed to be wrong, and they shouldn’t be expected to verify every opinion they have. People should be free to state their opinion, restricted only by laws that target specific kinds of bad behavior like defamation or perjury, not specific ideas. But to present an opinion as fact is misinformation that should not be protected.
Entertainment must be labeled. When a filmmaker produces a movie, or a satire website produces a satirical article, it needs to be marked as entertainment so people know that it’s just pretend, or it’s just a joke. And if some part of that is copied or shared, the label must follow it. To take something that was created as entertainment and pass it off as if it is real is misinformation that should not be protected.
Facts must be labeled. A prohibition against misinformation applies to anything labeled as a fact. Newspapers, news shows, and documentaries must carefully separate fact from opinion and label them accordingly. Any production that mixes fact and fiction must either be labeled entirely entertainment or must carefully point out what parts are fact and what parts are fiction. If someone made an honest mistake and labeled something a fact that they shouldn’t have, the consequence should be minor like issuing a correction. If the misinformation is deliberate, the consequences should depend on how widely it was disseminated, how many people were harmed, and so on.
If there is an accusation of misinformation, we handle it the same way we would handle a violation of the other laws we already have. Think about what happens when there’s an accusation of defamation or perjury:
We already use courts.
We already use judges and juries.
We already use due process.
We already have a way to examine claims when harm is alleged, and we already use it to restrict or punish certain kinds of speech. Let’s continue to do that.
Objection!
Should the government be in charge of deciding what’s true? No. Especially in matters that concern the government itself, like whistleblower complaints.
Am I saying that a person should be imprisoned for stating their honest opinion that is wrong? No. Nobody should be prosecuted for their opinions, no matter how wrong we think they are. But that doesn’t mean they should be allowed to publicly pretend or to deceive people into believing those opinions are facts. And if those opinions express a violent intent, they shouldn’t be allowed to cause harm to others through those opinions.
Am I saying public officials shouldn’t say anything before double and triple checking every word? No. But if a public official makes a statement that is turns out to be untrue, they could make another statement to correct it. When they refuse to make corrections, or when they were lying to begin with, when they claim free speech allows them to be dishonest and to manipulate the public, that’s where the people must be able to bring civil or criminal charges and hold public officials accountable.
We already have a process for resolving disputes over truth — it’s called the judicial system.
When someone sues for defamation, we don’t say,
“Oh no, the government is deciding truth.”
We say that we need due process:
Present evidence.
Have a trial.
Let a jury decide.
We already have a system for resolving disputes and conflicting claims that relies on evidence. We already have a standard for winning — proof beyond a reasonable doubt in criminal cases, and a preponderance of evidence in civil cases. And we already use judges and juries to ensure the process is fair and that the people deciding have no personal stake in the verdict.
It’s a cornerstone of our democratic civilization.
The difference is that right now our constitutional language doesn’t match our legal reality.
If we reform our freedom of speech to strengthen it, we can address misinformation with the judicial system we already have.
Closing
Although my proposal is to limit the freedom of speech to honest and peaceful communication, the goal is not to shrink freedom — it’s to preserve it. Like pruning a tree, we keep our freedom of speech alive and healthy by ensuring we don’t protect speech that is harmful.
If we redefine freedom of speech as the right to honest and peaceful communication, we align our Constitution with what we already practice — and what democracy requires.
If we want to keep free speech, we need to be rethink it.