Free Speech ?

[subgenius]

Michigan Attorney General Dana Nessel’s Office of Public Information threatened a website, Big League Politics, with criminal prosecution if it did not take down a video of alleged voting fraud.
...
The Cease and Desist letter instructs the site to remove all posts, links, and anything similar immediately which correspond with #LeakDetroit.” Assistant Attorney General Danielle Hagaman-Clark states that “failure to comply will result in criminal prosecution.” There is no citation for the penal code provision that makes such an allegation or posting a crime, a standard element in such notice letters.
...
The theory of our Constitution is “that the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates. - the Supreme Court, United States v Alvarez.


While the debate for free speech among citizens is not relevant here, I must ask posters if this action in Michigan is tantamount to censorship and a blatant assault on free speech; a right which is a fundamental right for anyone not-government. Should the government be allowed to intrude into the interwebs in this manner? regardless of whether the content is accurate, misleading, or even blatantly false?

[Res Ipsa]

You left something out that I think is important. Was the filming a crime?

[subgenius]

You left something out that I think is important. Was the filming a crime?

I am unaware that the filming or posting of the film was in violation of any law.

In an Oct. 28 cease and desist letter, Nessel told Big League Politics the videos violate Michigan law because they contain "misleading and false election information," according to a photo of the letter posted to the conservative blog Gateway Pundit.
...
The Cease and Desist letter instructs the site to remove all posts, links, and anything similar immediately which correspond with #LeakDetroit.” Assistant Attorney General Danielle Hagaman-Clark states that “failure to comply will result in criminal prosecution.” There is no citation for the penal code provision that makes such an allegation or posting a crime, a standard element in such notice letters.

[Res Ipsa]

This was pre-election. If it contained information that would mislead voters, it may well be criminal.

[ajax18]

You left something out that I think is important. Was the filming a crime?

Wasn't Mitt Romney's 47% comments illegally recorded? Not that I'm unhappy he never was elected president..

[Doctor CamNC4Me]

https://www.cbsnews.com/news/man-who-se ... s-forward/

Because Xanax doesn’t know anything about anything.

- Doc

[Res Ipsa]

You left something out that I think is important. Was the filming a crime?

Wasn't Mitt Romney's 47% comments illegally recorded? Not that I'm unhappy he never was elected president..

Not interested in a game of whataboutism today, thank you.

[Gadianton]

I got a text from one of subs buddies today. It says, "Voter Alert: democrats may be attempting to swing the election for Biden. Check to make sure that your ballet was counted..."

Nothing like unbridled optimism.

[Res Ipsa]

So, Sub, it’s an interesting question. I took a cursory look for an applicable statute and found none. So I can’t give an opinion on the constitutionality of whatever statute she’s referring to, if there is such a statute.

I’m not a free speech absolutist, but I’m pretty close. But even I am forced to concede that the lofty language you quoted may not apply to problems raised by our modern technology. Deepfakes come to mind. Fighting false speech with true speech works when there is a reasonable expectation that the target audience can reliably tell truth from lies. But that rationale breaks down when it becomes extremely difficult to tell lies from truth.

But let’s set that aside and look at the opinion. The question is, can Congress make it a crime to falsely claim that one was awarded the Medal of Honor? In other Words, can it criminalize stolen valor? So, the tough issue is to what extent should the First Amendment protect intentional lying.

There is no majority opinion. There is a four-person plurality that finds the statute fails strict scrutiny because it criminalizes all false speech of this type regardless of harm. The recognized free speech exceptions all involve some type of harm: defamation, perjury, incitement, etc. So, the plurality holds that the First Amendment protects harmless lying.

Two justices held that the statute did not meet the intermediate scrutiny standards because the Government could fulfill its objectives through less restrictive means.

Finally, three conservative judges found the statute constitutional because deliberate lies are not entitled to any First Amendment Protection.

This shows how hard this issue is to decide. The justices could not agree on which level of scrutiny to apply and whether or how much the government should protect deliberately false statements.

I read the Detroit newspaper’s fact check of the video. I think it’s fair to say that it is comprised of deliberately false and misleading statements intended to create an impression that the Detroit election officials planned to corruptly rig the election for Biden. So, how does the First Amendment apply?

That’s an easy question for the the three conservative dissenters — it doesn’t. The Michigan Legislature could criminalize this speech. But what about the plurality?

I think that the plurality would also hold that the first amendment does not protect this speech. It is clearly defamatory, as it falsely portrays the election officials as corrupt. It also falls within the related category of “false light.” But beyond that, there’s a very good argument that uses the same rationale as excluding perjury as protected speech: undermining the judicial system. Intentionally making deliberately false and misleading statements to attack the election process involve the same type of harm as recognized in the perjury exception.

TL/DR I think the Court would hold that this video is not protected by the First Amendment under existing precedent.