The Limits Of Free Speech

 

Well, we survived.

After a rough and tumble four years, in which everything went wrong except the economy for the first three, and then even the economy tanked in year number four, we have finally emerged on the other side. The would-be dictator is gone; his insurrection, quelled. Joe Biden has been safely sworn in as our 46th president.

Now what?

Now, the ire of the righteous must turn towards tearing down the apparatus that built Trump in the first place. If we kill the Frankenstein monster, yet leave Victor Frankenstein un-lynched, the mad scientist will undoubtedly try again.

That means the high priests of right-wing misinformation in the cult, Sean Hannity, Rush Limbaugh, Laura Ingram, Mark Levin, Lou Dobbs, and Maria Bartiromo, must be held accountable for their lies.

But how? Isn't freedom of speech a divine right?

Yes! But not without limits. Let's explore what those limits are, and what they should be under the law.

We all know the analogy about shouting "Fire!" in a crowded theater. A person who does that can ignite a panic which leads to many innocent people getting trampled. Surely, such a lie is prosecutable, and the person who shouted should be held accountable for the injuries or deaths that were caused.

In the same manner, the Hannity/Limbaugh caucus shouted "fire." More precisely, they shouted, "Fraud!" when there was none. Or, to be absolutely precise, there were irregularities, just as there are irregularities in every election, but the irregularities in this election seemed much larger and more ominous because it was more scrutinized than any election before.

If you look at something really close, it seems bigger, even when it isn't.

For four years, these Chicken Littles have been shouting, "The democracy is falling! The democracy is falling!" When it clearly hasn't been. You might think, just like in the children's tale, that at some point people would just stop paying attention to Chicken Little. And there has been a drop in Fox News ratings, that much is true. But that drop has not gone sufficiently below the kind of threshold needed to induce firings.

In fact, after a brief period of reality on January 7th, Fox News seems to be doubling down on the bullshit.

Does freedom of speech give one the right to say something which is untrue? In fact, it usually does. People may be genuinely mistaken and so pass along incorrect information with an honest heart. But it also protects citizens' right to outright lie. People may spread rumor, or even bluntly lie about any number of things, without fear of legal consequence in most circumstances. Comedians are free to do parody. Authors are free to do satire. Religions are free to preach faith-based falsehoods. So long as there is no discernible physical harm in these actions, such fictions are our right.

And yet, the right to fiction is not an absolute! For example, one could be sued for libel, if the lie resulted in tangible, physical harm, or measurable financial loss. A CEO who gets fired over a false rumor that he was sleeping with his secretary, might be able to sue the originator of the rumor for losses, and win in court.

There was real, physical harm, and measurable financial loss, arising from the lie that Joe Biden somehow didn't win the 2020 election. The phrase "Stop the steal!" has literally cost lives, and damaged property.

Which means that Trump, and the Hannity/Limbaugh caucus are in an actionable position under the law for those damages! Is there a lawsuit pending? There should be.

The right to fiction is also not applicable when it comes to selling products. If one sells a can of soup, one is legally required to list the ingredients on that can, and the contents of the can must not deviate from that list. If the list itself contains something harmful (monosodium glutimate, for instance), and the consumer buys it anyway, that's on the consumer. But if the product label says one thing, and the product contains another, that's on the manufacturer! For example, if the label says "gluten free," but the product actually contains glutin-based flour, the manufacturer can be sued! If a product is sold as a cure for various diseases, such as "magnet therapy" or "pyramid power," such product is also liable for a lawsuit.

In like manner, Hannity, Limbaugh and their copycats have been selling false product. They have been claiming themselves as truthful opinion-pundits, when in reality they have been spewing known falsehoods.

It is the equivalent of selling a bottle of bleach which is labeled "milk."

Of course, as we all know, it can be devilishly tricky to take certain fraudsters to court. If the peddler of some penis-enlargement pill (for example) is sued for fraud, the defense attorney will usually cite some shoddily done university study and get off the hook. Whether that university study is reliable or not isn't the point. All that is required is enough plausibility to make the vendor non-culpable.

Limbaugh, Hannity, and their ilk try a similar tactic. They label themselves "infotainment," branding themselves as entertainers rather than actual news broadcasters. Fine, except they are typically broadcast on actual news networks, and not on E!, or Lifetime, or USA.

I like to call it, "misinfotainment," because that's closer to the truth.

That covers the legal limits of freedom of speech which are already on the books. The Limbaugh/Hannity collective should already be facing lawsuits for the violation of those existing laws. But is there any way the preservation of truth in our information can be strengthened without violating our freedom of speech and expression?

I argue there is! Let's call it "the Integrity in News Bill."

I doubt this will ever be brought up for an actual vote. If it is, Fox News will hire ever lobbyist they can get their hands on to stop it. But it is a GREAT idea. Here it is:

If the media outlet labels itself "news," it is legally bound to adhere to a set standard of truth. Opinion shows must be balanced to show both sides of any political debate, somewhat like what CNN's "Crossfire" show used to be. No one on a media outlet branded as "news" is allowed to knowingly make a false statement, like the one Maria Bartiromo made a few days ago when she said that Antifa people were instigating the January 6th riot on the Capitol. Such a breech of public trust would result in a hefty fine, and/or the offending pundit being fired. If one's network is meant to inform the public, then it should be legally bound to inform the public! Not misinform the public! "Infotainment" shows get exiled to some other channel. Perhaps Hannity could land a job on TBN. Rush Limbaugh could go to the Playboy channel.

Maybe Rachel Maddow will end up on MTV. 

This fix needs to happen, and FAST! Because it is so easy to artificially beef up ratings with bullshit and anger-porn, that it's spread just about everywhere. Every major metropolitan area has at least one A.M. radio station devoted exclusively to right-wing bullshit. Most local television stations are owned by one or two companies, all of whom want their own right-wing propaganda given time on your local "News at Nine" broadcast.

70% of Republicans don't believe that Biden stole the election because one or two pundits say so. They believe Biden stole the election because ALL the right-wing pundits, AND Fox News, AND OANN, AND Newsmax, AND all their Facebook friends, AND their local pastor say so!

It's gotten WAY out of hand! The lies have NEVER been so institutionalized!

But it ALL begins with the right-wing bullshit masters, Hannity and Limbaugh. And they get it from right-wing spin-doctoring institutions like the CATO Institute.

Will any of this be stopped? Can it be fixed? I don't know. I hope it will. But one thing's for certain:

These right-wing pundits, after nearly burning down our ENTIRE nation, must NOT be allowed to simply go back to work as though nothing happened!

The piper must be paid!

Eric

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