The First Amendment, Tucker Carlson, and COVID-19

Here’s an excerpt from a piece that I hope readers will find to be an informative summary of our rights to free speech as guaranteed by the First Amendment to the U.S. Constitution:

On Friday night, Carlson was back on Fox News to welcome COVID-19-”truther” Alex Barenson to his program. Together, the two said that “masks are useless” and nothing more than a symbol that someone is obedient to the government, and claimed that mask mandates have no intention other than to make people scared, and are doing “psychological damage.” They then moved on to say that the vaccines are “declining in effectiveness very quickly,” and that the truth about vaccines was being blocked by “tremendous financial pressure.”

Decades ago, the Supreme Court determined that the United States should live with a very expansive view of the First Amendment’s promises of free speech; in fact, that view has continually expanded. Until the 20th century, the primary test was of “bad tendency”; that is, speech could be outlawed if it could be seen as causing harm to the public welfare. Then, for most of the last century, the test was “clear and present danger,” meaning that speech didn’t have to just be something that was considered a threat, but an imminent and specific threat. That requirement was made even sharper after 1969 when a series of decisions moved the stakes to a requirement that speech be designed to generate “imminent lawless action.” Under that requirement, speech is not protected only if it is intended to create an incident that is both “imminent and likely.” 

That expansion of First Amendment rights has been a good thing, in part because it has protected the speech of those arguing for civil rights and those protesting war. But it’s also been used for bad purposes, to protect speech designed to create schisms in the nation and to build up racist hatred. However, even the most extreme interpretation of the First Amendment should not protect the acts in which Carlson is currently engaged. His words are, by any standard, causing harm to the public welfare, generating a clear and present danger, and creating an imminent threat to the very lives of Americans.

Whether or not Carlson could be successfully prosecuted is an open question. Whether he should be on the air is not.

This is informative, but it’s really just chatter.  By what mechanism could Fox News be forced to remove him?  Sure, television personalities are taken off the air all the time, but that’s because their ongoing presence represents a costly degradation of the organizations that hire them.

The precise opposite is the case here.  His viewers eat this crap up with a spoon.  The fact that it’s clearly damaging human health and welfare is trumped by the fact that it’s making money by the bucket full.