Free speech is supposed to protect all of us from being punished for expressing ourselves. But according to the courts, there are some forms of speech not protected by the First Amendment. But are these courts right?

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Here’s a transcript of our conversation:

Connor: Hey, Brittany.

Brittany: Hi, Connor.

Connor: So, you and I are big free speech fans, but more and more I feel like free speech, it’s under attack. It just is. And as long as this country has been around, there’ve been different beliefs as to how free speech actually is. There’s been a lot of different ideas. We’ve talked in the past about different threats to it. There was a lawsuit recently where someone had to pay nearly a billion dollars, or rather, it’s not that they actually paid it, they were told that they’re on the hook for it.

Brittany: Always wonder about that. Actually, I don’t know what that is because you can’t pay money, you don’t have.

Connor: Take out a loan, I don’t know. But the jury is like, you got to pay all these many billions of dollars because other people were upset that he had said some things that were untrue on his radio or YouTube show. It doesn’t matter who it is, some of the parents may know, but the point that we’re talking about is the issue itself. Here’s someone who said some untrue things and on his show, and some people got upset. They claimed that what he said caused them damages. In other words, they were damaged as individuals by this speech because what he said was untrue. And so they said that he was guilty of what’s called defamation. So, defamation is basically when you defame someone, if you think of the word famous if someone has fame, they have a good reputation, and people like them. So, to defame someone is the opposite of that. You’re destroying their reputation. You’re making it so that people don’t like them. And so that’s defamation is when people are like, Hey, you did something that caused people to not like me. And so they sue for defamation. And so the government has said that you don’t get your right to free speech if you say something that is knowingly untrue. In other words, you knew it was false and you still claimed it was true and you hurt someone else. But I think there were some problems with this. Brittany, maybe for conversation, let’s start this way. I want to ask you in a case like this, or in general, who gets to determine what’s true? If this all boils down to you knowingly saying something that was false and you hurt someone in the process, who gets to decide what is actually true or not?

Brittany: That’s the thing I think that bothers me the most about this. Well, two parts of it. One, who gets to decide what is true, and two, what constitutes or what means you hurt somebody? What does that mean? What does that hurt mean? And so in this case, it’s the government, it’s the courts, right? They get decide, okay, you knew that wasn’t true and you said it anyway, and we’re going to decide this person was hurt because their feelings are hurt. And so you have to think that both of these terms are very subjective, meaning they might mean different things to different people without any clear definition. And I think it’s really, really dangerous when we give the power to decide what is true to a government entity. Because then you’re saying the government thinks of the precedent. That setting, right? Then you can say, okay, well the government’s right about this, and then the government must be right about this. And basically whatever the government says must be true. But not only that, you said the word knowingly true, which means they also get to decide whether or not you knew it was true according to their rules. So, it just seems really scary to me to give that much power to a government entity to decide what is true and isn’t my biggest fear.

Connor: Also this idea of harm that you and I both mentioned. I want to talk a little bit about that as well, because is it that there your feelings are hurt? What does it mean to actually be defamed? Here’s a totally unrelated example, but I think it illustrates some of the problem. So, when it comes to your house, usually for most people, their house is their most expensive investment. In other words, maybe they have some stock or maybe they have some savings, but people spend a lot of money on their house, and so they want to protect the value of that investment. They want to make sure that they’re not losing money. So, let’s say that someone down the road moves in and they start leaving trash all over their front lawn and they paint their house bright pink and they put up spotlights at night and they play loud music and they have 80 cars parked all along the side of the road, like a party house or whatever. Well, those neighbors are going to start to feel like their investment is going down in value. Why? Because your value is just what other people are willing to pay if you try and sell your house. And so if your neighborhood gets kind of weird of this one house and people are like, eh, I don’t want to live there, suddenly it’s going to become harder to find buyers for your house, which means that the value is going to go down. It will be hard to get a lot of money if you were to ever sell your house. And so what all this leads to is that people will often try and use the government to punish people like that. You can’t paint your house this color, you can’t do this, you can’t do that. You can’t have trash on your front lawn, all because they want to make sure that other people don’t do things with their property that might negatively impact them. And so that’s a roundabout example for me with free speech here, because it’s like, well, yeah, sure you have the right to free speech, but if you hurt me, if you say something that I don’t like, that defames me, my fame goes down, people like me less, that’s bad. So, I’m going to use the government to muzzle you, to punish you if you say something that’s not nice about me, but I’m like, have you ever seen the internet? It is like constant defamation. Everyone’s going around criticizing everyone else and poking fun at politicians or opposing what the media says or whatever. And so to me, in this particular case, this lawsuit we’re talking about, I don’t know that it doesn’t know. I don’t that there was actually any harm. Do I think that this radio host hurt some people’s feelings? Totally. Absolutely. Do I think that some people really hate the guy? 100%. Do I think that he should have to pay billions of dollars billion with a B just because these people got their feelings hurt? No way. That just seems totally, the word I’m looking for I guess, is disproportionate. In other words, it’s not proportional. It’s not a good match.

Brittany: That means punishment doesn’t fit the crime.

Connor: Yeah, there you go. Yeah, punishment doesn’t fit the crime. It’s like, sure, maybe a few thousand dollars or I don’t know, 50,000 pay for some kids’ college funds or I don’t know, set them up for a little better life, something more reasonable. But this seems like the government and the people involved just wanted to thump this guy and make a case out of him. And I just think that’s dangerous for protecting free speech.

Brittany: I also think it’s dangerous because there’s a lot of, oh, he’s a conspiracy theorist. He’s this or that. Here’s why this scares me is we’ve done episodes and talked about things like Operation Northwoods before in times when the government did lie and things like that. And so it also worries me that if we say somebody can’t share their opinion on whether or not they think something is true, and they may be completely wrong, but if they think that, and if that is something they want to share, they should be able to share it. But now if you say something and then somebody says, you hurt their feelings, can we just not say anything anymore? And when is the next lawsuit going to come and then the next one? And so I think it’s really dangerous that we’ve set this precedent now that we can look back on and say, well, okay, well, they were able to sue him for a billion dollars. It’s very scary to me.

Connor: Yeah, you’re right. One of the terms for this is a chilling effect. So, what that means is to think of yourself when you’re really chilled. Your teeth are chattering and you’re shaking there in the cold, and it’s kind of getting that way. Where I live right now, when I walk the dogs in the morning, and I’ve got three layers on so cold outside, and I know you miss it, Brittany, but so I’m really cold. And so it’s hard to move. It’s hard to take action because I’m just like, I’m chilled. A chilling effect is that same kind of idea. And in this case where we’re talking about free speech, when exactly what you just said, Brittany, if you look and see that some guy got punished, he got sued and they want him to pay billions of dollars because he said something that was apparently untrue and that hurt these people’s feelings caused them harm, that can create a chilling effect for other radio hosts or YouTube hosts or newspaper article writers or bloggers or podcasters or anything else, because they’re like, well, wait a minute. If that could happen to that guy, maybe something similar could happen to me, and I don’t want that to happen to me, so maybe I’m just going to not say the things I would say. I’m not going to speak my mind for fear of something similar to that happening to me. So, that’s the chilling effect I get frozen into not moving, not taking action because I’m worried about someone else. What happened to them happening to me? Brittany, I want to ask you this though. Let’s go to the broader principle. So, free speech, should it just be completely free, or are there any reasonable limits if we’re kind of poking at this defamation idea, right? Like, hey, just because you hurt someone’s feelings or attacked their reputation or whatever, should there be, in your view, any limitations to free speech?

Brittany: So, it’s interesting. So I have two answers basically because I work with a lot of attorneys and I work in things like this. I know the justification, I know the reasons why there are some limits to free speech and I understand them. But in my perfect ideal world, I don’t think there should be limits on free speech. I think you should be able, if you think someone has harmed you should be able to take them to court in civil court is what we call it, where the government’s not really involved and work it out between two parties. But I don’t think you should be in trouble for saying, and I don’t think there should be a government rule that says there are limits on free speech. I think free speech should be just that. It should be free, but you should know that there’s consequences for things that you say, and maybe the consequences people don’t like you. Maybe that’s the consequence that you said something and people choose not to talk to you anymore. But I tend to think that speech should be completely free.

Connor: Well, it is interesting to think about because let’s say this whole, if you know something is untrue and you still say it with the intent to cause that person harm, I can have some sympathy there because people have said untrue things about me that they knew were faults, and it hurt. It caused me problems. My reputation was lowered in the eyes of people who saw this because this person I’m thinking of publicly claimed that I had done this corrupt thing, that I had taken money for this political thing when I had in fact not. But never in my mind did I think, oh, I’m going to sue that person. What did I do? I combated speech with more speech. I made my own public post. I said this was a complete fabrication, a total lie. Here’s evidence, I guess. But it’s not like there was nothing to prove. They claimed that I had made all this money. I hadn’t. How do you prove that that didn’t happen? But I basically laid out why I thought this person was saying this and the whole background. And at the end of the day, people are going to have to make up their minds maybe who they find more credible if they think I’m just lying through my teeth and I really did get the money, and I’m really corrupt. There are some people out there who still think that to this day, but what can you do? I mean, are we just going to sue everyone every time someone makes something up about us?

Brittany: Can you imagine with the internet?

Connor: Oh boy. Social media especially. So yeah, I never thought, Hey, let’s go sue this person. It’s more just, that I think the way to address problematic speech is with more and better speech. I think a lot of what we’re seeing right now is people want to shut the speech down if it’s something they don’t like, whether we’re talking about gender trans stuff or we’re talking about critical race theory stuff, or we’re talking about liberty or how bad the schools are doing or whatever. A lot of people out there just want to shut down their competitors. They don’t want that topic being discussed or that person being allowed to have a platform to talk. And so I think one of the reasons why I’m optimistic for Elon Musk being in charge of Twitter again now and things like this is like, let’s not go the censorship route where we shut down speech. Let’s actively encourage more speech. Let’s push out the crazy people and the fringe ideas with more people engaging them and providing evidence and arguments in favor of something better. So, this could be an interesting topic for you guys as a family. Do you think there are limits around free speech? Is it absolute? And if there are limits, what should they be and how would you enforce them to make sure that you don’t have these crazy lawsuits where billions of dollars are being awarded by juries? So, if you do want to control free speech in some circumstances, what does that look like? That would be a fun, interesting exercise for you guys to think through as a family. This is a super important topic in our day. This is very relevant to what is going on right now. Of course, in our world, this whole debate over free speech and how many people don’t support free speech, they want to shut down their opposition. So, this is an issue that’s not going away. It’d be great for you guys as a family to talk about it. We’ll leave you to it, Brittany. Thanks as always. And until next time, we’ll talk to you later.

Brittany: Talk to you later.