The Left's attacks on free speech ramp up in California. Is all of America next?
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Elon Musk loves to troll. His most recent victim is Gov. Gavin Newsom of California. Though, because of the new anti-meme law Newsom passed in the Golden State, Elon's trolling might be an indictable offense. Worse yet, if Kamala Harris becomes president, similar laws could become the norm across the United States. According to top leftists, the First Amendment be damned.
Earlier this month, Newsom signed a series of laws aimed at combating deepfakes and what he termed "politically deceptive content," sparking a heated debate about free speech and the future of online expression.
These laws, such as AB 2839, make it illegal to distribute materially deceptive content, including AI-generated videos, within 120 days of an election. While this is presented as an effort to "curb misinformation" and "protect voters" from being misled, critics argue that the vague definitions in the law create a slippery slope. Could these measures lead to broader restrictions on political discourse?
At the heart of the controversy is whether California's laws infringe on First Amendment rights. The US Constitution protects even offensive or misleading speech, unless such speech incites imminent violence (Brandenburg v. Ohio, 1969). These new laws, however, introduce the potential for broad government overreach by giving state authorities and courts the power to determine what constitutes "deceptive content" or "misinformation," and prosecute people based on those politicized definitions.
Elon Musk responded to California's new deepfake law on his platform, X (formerly Twitter), by criticizing it as an infringement on free speech. In a series of posts, Musk sarcastically remarked, "You're not gonna believe this, but @GavinNewsom just announced that he signed a LAW to make parody illegal," referencing the viral deepfake video of Kamala Harris that partly motivated the law. He also labeled Gov. Newsom "the Joker," implying that the law is a serious overreach of governmental power.
The line between political satire, like deepfake parodies, and "misinformation" – much less "harmful misinformation," as the Left loves to claim – is dangerously thin. Even if a definition of what that means could be agreed upon (there has been no such agreement to date) the potential for abuse makes giving government the ability to regulate speech an extremely unwise proposition.
One of the biggest concerns for Americans is how Vice President Harris has consistently expressed her support for similar laws and regulations on "misinformation" and "hate speech."
During her 2020 presidential campaign, then-Senator Harris advocated for holding social media companies accountable for what she called "aiding the spread of domestic terrorism and misinformation."
More recently, she has championed direct government involvement in policing speech on tech platforms, suggesting that unchecked speech online poses a direct threat to democracy.
This is the concern of many Americans; that the same issues raised by California's new laws – namely, vague definitions and a dangerous precedent for government intervention in political discourse – would very likely be rolled out federally if Harris is able to sit in the Oval Office, come January.
GROWING OPPOSITION TO FREE SPEECH
What is extraordinarily concerning for many is the new realization that a growing number of Americans, particularly college liberals along with racial and religious minorities, are showing a dramatic opposition to free speech.
In one recent poll, 61% of Democrats and 52% of Republicans at least partially agreed that the First Amendment goes too far in protecting expression. Fifty-three percent of Americans in general believe that the First Amendment goes too far in the rights it protects.
In another poll of college students, only a small percentage believed that someone who argued that transgenderism was a mental disorder or that "Black Lives Matter" was a hate group should be allowed to speak. At the same time, a large majority of them believed that a speaker who attacked religious freedom or the Second Amendment was fine.
"Evidently, one out of every two Americans wishes they had fewer civil liberties," said FIRE Chief Research Advisor Sean Stevens. "Many of them reject the right to assemble, to have a free press, and to petition the government. This is a dictator's fantasy."
Of course, the dictators are more than happy to oblige such foolish notions.
Historically, the US Supreme Court has rejected attempts to limit speech based on content. In New York Times v. Sullivan (1964), the Court ruled that even false statements about public officials are protected unless made with actual malice. These precedents suggest that Harris' proposals could face constitutional hurdles, but that might not stop her.
COURT-PACKING: THE PATH TO REDEFINING FREE SPEECH?
Perhaps the most concerning aspect of Harris' free speech agenda is her openness to packing the Supreme Court. Harris has expressed support for expanding the number of justices on the Court to counter its current conservative majority. If Harris were to win the presidency and gain control of both the House and Senate in 2024 or 2026, she could have the political capital necessary to push through legislation expanding the Court. This would allow her to appoint justices who are more sympathetic to her views on regulating speech.
To pack the Court, Harris would need to pass a bill through Congress to change the number of justices. This move could potentially eliminate the filibuster in the Senate, making it easier to pass such a law with a simple majority. Once the Court is packed with ideologically aligned justices, the danger arises that the new majority would be more willing to reinterpret First Amendment protections, particularly around political speech and online content.
THE FUTURE OF FREE SPEECH UNDER A PACKED COURT
If a packed Supreme Court were to uphold the Left's new anti-free-speech laws, it could drastically alter the landscape of free speech in America. Political speech, which has traditionally enjoyed the highest level of constitutional protection, could become subject to government regulation. Speech deemed harmful or "misleading" by the government would be restricted, with platforms forced to comply or face penalties.
This would effectively destroy any genuine political debate, leaving only establishment approved ideas as acceptable in the newly-narrowed Overton window.
More concerning is the broader precedent this would set. If the government can curtail First Amendment protections in the name of combating misinformation, what's to stop future administrations from targeting other constitutional rights? Would the Second Amendment be next? Could the Fourth Amendment's protections against unreasonable searches be targeted after that? Once the Court becomes a tool for enacting the political will of the party in power, the erosion of constitutional rights becomes a very real and terrifying threat.
If there is one lesson to take from history, it is that once governments gain the power to control speech, other rights are rarely far behind.
Editor's note: Radical secularists have undermined the premise of the Founders to the detriment of our nation and its people. It's time to fight back. Reclaiming the Republic will show you how.
Arthur is a former editor and consultant. Born in India to missionary parents, he spent his early career working in development for NGOs in Asia, Central America, and Africa.
Arthur has an educational background in history and psychology, with certifications from the University of Oxford and Leiden in the economics, politics, and ethics of mass migration and comparative theories in terrorism and counterterrorism. He is currently launching CivWest, a company focused on building capital to fund restorative projects and create resilient systems across the Western world.
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