Murray: First Amendment comes with freedom, responsibilities for the press
The First Amendment is the most important addition to the U.S. Constitution. When applied fairly, this amendment guarantees an individual the right to be who they fully want to be. You have the right to speak your truth, you have the right to live your faith, you have the right to join groups of like-minded people, you have the right to petition the government for a redress of grievances. You also have the right to speak truth about power through the press, as the First Amendment guarantees a right to a free press.
This right is not one of the most popular ones. Most Americans can recall they have a right to free speech or a right to exercise their religion, but most do not remember that the press is also free. All of these rights are expansive, but not exhaustive. For example, you can say what you want, but you cannot yell fire in a crowded theater. Regarding the press, regulations thus far have applied to broadcast media so that you will not hear certain swear words on the radio or see nudity on KUTV.
This past session, the Utah Legislature sought to curb digital media by passing new regulations: first, minors will need their parents’ permission to use social media and, second, social media platforms may not use features that encourage addiction in young people. Many would argue these regulations make sense, especially in light of the mental health crisis the nation is facing among young people that is largely driven by social media use.
At the national level, the Supreme Court heard a case last month that may result in further restrictions. In 2015, Nohemi Gonzalez was killed by an ISIS terrorist attack and her father sued Google, Twitter and Facebook, claiming the platforms were liable for aiding and abetting international terrorism by not preventing ISIS from using their services to spread its message. A federal district court and the Ninth Circuit Court of Appeals dismissed the case based on Section 230(c)(1) of the Communications Decency Act, which holds harmless interactive computer services when they make recommendations of content from another provider. For example, if you buy a lemon from someone on KSL Classifieds, it is not KSL that is to blame when your car doesn’t work. This intuitively makes sense, but Gonzalez would like Google held responsible for the radicalization of ISIS terrorists who killed his child — and his argument is also compelling. While this is a different issue from that which the Utah legislation seeks to solve, in both cases, we may see new curbs to the First Amendment’s protection of a free press.
The press is free but it cannot publish lies in either the form of libel (written falsehoods) or slander (spoken falsehoods). Another case in the justice system right now hangs on this guideline: US Dominion, Inc. v. Fox News Network, LLC. Documents released from the $1.6 billion defamation lawsuit reveal that Dominion Voting Systems is claiming Fox News willfully spread lies about its election equipment by elevating false claims that the 2020 election was stolen. Fox News defended itself saying the First Amendment protects its right to broadcast claims made by others. If Sidney Powell is speaking lies and Fox News interviews her, Fox News cannot be held to blame for Powell’s lies.
The problem for Fox News and its chair, Rupert Murdoch, is that evidence shows they knew the claims were false and aired them anyway in a desperate attempt to keep their viewers from turning to their competitor, Newsmax. Perhaps partly as a result of this coverage, hundreds of people attacked the U.S. Capitol in an attempt to stop the certification of the 2020 election. To be clear, Dominion is only arguing that Fox News defamed them; I am arguing that under no circumstances is it the case that the First Amendment makes the press so free that it can willingly lie to Americans and cause them to try to overthrow a duly elected government. Fox News does not get to sacrifice the republic for its market share. Its hosts are influencers in our nation and they have an important role to play in keeping this republic, which means when they know Sidney Powell is lying, they should not call her a “great American.”
Possibly there is change coming to our understanding of a free digital press. There is probably a billion-dollar reckoning coming for Fox News and I hope it hurts their pocketbook enough that they do not take their part in our system so cheaply again. For us to be informed and engaged citizens, we need a free press that gives us credible information.
Leah Murray is a Brady Distinguished Presidential Professor of Political Science and the academic director of the Olene S. Walker Institute of Politics & Public Service at Weber State University.