Jailed for exercising your right to free expression?

Two former secretaries of state have recently called for government action against “misinformation,” the First Amendment notwithstanding. Speaking at the World Economic Forum’s Sustainable Development Impact Meetings in New York last month, John Kerry told the audience, “If people only go to one source [for news], and the source they go to is sick and has an agenda and they’re putting out disinformation, our First Amendment stands as a major block to be able to just, you know, hammer it out of existence. So what we need is to win the ground, win the right to govern, by hopefully winning enough votes that you’re free to be able to implement change.”

Well, I don’t think the American people are going to allow Congress or the states to change the First Amendment anytime soon—and especially not to empower the government to combat “disinformation.”

Kerry’s remarks are all the more startling because they come on the heels of similar sentiments from his predecessor at the State Department, Hillary Clinton. This Newsweek headline pulls no punches: “Hillary Clinton suggests posting Russian propaganda should be a crime.” In an interview last month on MSNBC’s The Rachel Maddow Show, the former first lady and presidential candidate was asked about Russian election interference. She underlined, correctly, the importance of seeking criminal sanctions for foreign agents who unlawfully try to influence U.S. policy. But then she went on to say, “I also think there are Americans who are engaged in this kind of propaganda. And whether they should be civilly or even in some cases criminally charged is something that would be a better deterrence.”

Yes, that’s certainly true—jailing people for doing something definitely will deter them from doing it. That’s not something we’ve done in the United States, traditionally, and for good reasons. First is the obvious—that pesky provision in the Bill of Rights mentioned by Kerry, the one protecting Americans’ freedom of speech. If some Americans genuinely agree with Russia’s policy positions, are we to start jailing them for doing so out loud because they veer from the party line on Ukraine? I’m not a big fan of Russian President Vladimir Putin, in part because I thought he was the one who jailed political opponents for speech opposing his regime.

In the same interview, Clinton said, “Republicans go to the floor of the Congress and they parrot Russian talking points.” Again, are we to start jailing members of Congress because they are persuaded by information provided by a foreign embassy accredited to our country? And if not, then why should we imprison everyday people for the same thing because they got the information from a website instead of an ambassador?

Clinton’s answer cannot be excused as simply stemming from her inability to move on from 2016 and the belief that the presidency that was rightfully hers was stolen away by Donald Trump and Putin (him of Clinton’s own “reset” button). Rather, it goes to a deeper sentiment evident throughout the modern left of using the law generally, and criminal law specifically, to punish political opponents.

Minnesota Gov. Tim Walz, now the Democratic vice presidential nominee, voiced a similar thought in 2022 on a different MSNBC program: “There’s no guarantee to free speech on misinformation or hate speech, and especially around our democracy.” That statement was, ironically, misinformation because the Supreme Court has said there is no “hate speech” exception to the First Amendment. The Supreme Court has also struck down the Stolen Valor Act, which criminalized lying about one’s military service record (perhaps a good thing in Walz’s case).

Russia is a bad actor on the world stage, and we should be rightly vigilant against efforts by Iran, China, and other malignant foreign actors who engage in illegal spying or influence operations. We should prosecute foreign agents who illegally operate within our borders. But it’s a far cry from that to say that when American citizens choose to publicly agree with the policy views of a foreign power, we should send them to jail.

As a people of faith, we are also called to be a people of truth. Misinformation, disinformation, defamation, slander, lying, and fraud should have no purchase among us. All sin and fall short in this area as much as any other, but we should always strive to be a people of truth (Ephesians 4:29). And where courts or laws provide protections against fraud and lying, we should not hesitate to vindicate the truth when others sully it. But we should also recognize as Americans that free speech is both a right and a trust. As the Apostle Paul reminds us, just because we have a right does not mean we should abuse it when it harms others (1 Corinthians 6).

The First Amendment may protect a right to say hateful things, or produce pornography, but that does not mean we should do so. We should protect and promote the truth and protect breathing room for the truth to find its way in the free and open marketplace of ideas that has always characterized our country.