Bad Times for the First Amendment

Peter Van Buren
6 min readOct 24, 2021

These are bad times for the First Amendment.

The very big picture is bad. Progressives woke up one morning to realize they controlled the media. People who thought like them made our movies, TV shows, and most importantly, owned the greatest propaganda tool ever invented, social media. They could significantly influence not only which breakfast cereal America liked best, but also which candidate America should vote for.

And none of it fell under the First Amendment. That old saw only protects people from government censorship, not corporate censorship or propaganda. The Founders never conceived we the people would want to have our media censored, or that companies would grow more powerful than the government to be able to do so, or that the age-old remedy for misinformation — truth — would become so reviled and feared. Of all the Founders’ omissions of issues unimaginable in the 18th century, this is the one which may prove fatal to the Republic.

The big picture is bad. Thanks to legal razzle-dazzle aimed at limiting corporate liability for the garbage they publish, Section 230 of the Communication Act was born. This removed the threat of libel to allow social media to become an even more powerful influence in our lives. They could shove anything up America’s nose or down the memory hole penalty free.

The law reads “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what is on their platforms. So if Twitter wants to only include false happy news about Hunter Biden, it can. If Twitter wants to enable those who spew out out-and-out lies about Trump, it can. They ran amok with Trump and Russia, willfully promoting lies that were part of a professional disinformation campaign Goebbels would have looked at in awe.

The Founders envisioned media as an essential element of democracy, affording it unique status in the Bill of Rights to inform the people. Social media repurposed that grace into an anti-democratic tool which works like this: a journalist “publishes” a falsehood on social media. The mainstream media then does a story about that tweet, cleverly using Twitter as the quoted source to cover themselves from any claims of libel or obligation to the truth. They are just reporting what was already on Twitter.

This legal and moral sleight of hand allows places like the NYT to whore out their credibility to front page the most atrocious gossip — see, we’re not saying it’s true, only that it was on Twitter. The power of the 1A protects the NYT, which becomes a front for the partisan work of so-called non-publishers on social media. Think of it as an 1A reach-around.

This willful journalistic malfeasance could not exist without the collaboration of the search engines to hide the truth. Search engines have become of the most politicized interactions of anyone’s day, shoving information and denying it in equal amounts, all driven by the views of, well, someone, no one is really sure who anymore.

What we do know for sure is in the end the massive global media infrastructure was recruited to drive Trump from office. Where the effort failed with Russia, Ukraine, January 6, and all the sideshow acts of Emoluments and Stormy Daniels, it finally got enough traction to matter with Covid. Trump killed your grandma. Today the guns are all reloaded, and the media is already declaring 2024 stolen if Trump wins.

The small picture is also bad. Journalists, who depend on the 1A for their jobs, no longer believe in its most foundational tenet: informing the public to enable them to participate more fully in our democracy. On a small scale, journalism is now a weapon to take 1A rights away from those deemed politically unsuitable. Here’s one case study to spoil breakfast.

I don’t know Shawn McCaffrey or Christopher Mathias. I do know both of them believe in ideological purity. But one’s a threat to the 1A and one just likes to hear himself talk.

Shawn belonged to Identity Evropa, which among other things played a role in the 2017 “Unite The Right” rally in Charlottesville. Chris meanwhile identifies as a journalist for Huffington Post and covers “far right, disinformation, and hate.” He believes Identity Evropa Shawn is dangerous because he is “racist, homophobic and hosts an anti-Semitic podcast.”

Chris believes Shawn is so dangerous he devoted his own First Amendment rights as a journalist to stomp the wind out of Shawn’s First Amendment right to say hateful things, to the point where Chris and HuffPo stalked Shawn to discover he had enlisted in the Air Force. They turned over their 1A-protected “journalism” to a progressive-aggressive Congresswoman for weaponization, not unlike the two-step practiced by place like NYT and Twitter. The Congresswoman made the Air Force throw Shawn out.

Why did Chris, HuffPo, and the Congresswoman go so far out of their way to get Shawn out of the Air Force? Because they believe people like Shawn join the military not to serve their country, but “to receive combat training they can use to inflict violence on civilian targets and can recruit other servicemen and servicewomen to their cause.” Journo Chris adds this is “a problem brought into focus by the prevalence of current and former military personnel taking part in the storming of the U.S. Capitol on January 6.” At worst only 15 percent of those arrested had some vague “tie” to military service.

This game is not new for Chris and HuffPo. They got an elementary school teacher fired for writing things on “extremist” sites they did not agree with. The teacher also wrote for The Atlantic, Vice, The Daily Caller, and The Weekly Standard, the latter two Chris tells us “let him make his racist sympathies clear in print.” In 2019 Chris and HuffPo “exposed” 11 racist servicemen. Evidence HuffPo amassed included a Facebook posting by one who wrote he likes “Tennessee because it is conservative and Christian, implicitly white.” That’s not even true; the state is almost 17 percent black but whatever.

Chris the journalist also believes without evidence “many nameless fascists today lead double lives, hiding behind avatars to promote their noxious beliefs online while holding down respectable day jobs in education, military, law enforcement, medicine or government.” He works with whatever the hell the Anonymous Comrades Collective is “to expose Nazis, racists and fascists.”

By the way, in case you haven’t guessed, paranoid Journo Chris is the threat and Racist Shawn is the one who just likes to hear himself talk.

When so-called journalists judge ideological purism, we see in practice the same hatred and bigotry, backed up by self-granted righteousness, they claim to oppose. Shawn blathering out of his basement about how gays aren’t suitable for the military is no different than Chris standing atop HuffPo’s platform and saying people like Shawn aren’t suitable for the military.

Like any good National Socialist of old, Chris is certain what he is doing protects the country in what he wrote is a moment of moral emergency. He and HuffPo are nasty ideologues who believe their ends — ideologically cleansing America — justify the means. Right now that cleansing is a version of cancellation but really, why stop there? Go full Inglorious Basterds and really take out some Nazis as a final solution to free speech, the threat to democracy that keeps electing Republicans.

Things have moved beyond journalists sniping at each other in print, or even partisan reporting. The case with Chris and Shawn is repugnant because it involves a journalist who finds someone else’s exercise of a Constitutional right so distasteful that he used the full power of an international media organization protected by that same First Amendment to destroy the speaker. That’s far more distasteful than anything out of Shawn’s potty mouth. And, biggest picture of all, that’s what is left of journalism at this point.

Peter Van Buren is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, Hooper’s War: A Novel of WWII Japan, and Ghosts of Tom Joad: A Story of the 99 Percent.

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Peter Van Buren

Author of Hooper’s War: A Novel of WWII Japan and WE MEANT WELL: How I Helped Lose the Battle for the Hearts + Minds of the Iraqi People