For freedom of speech, legal details matter

 More recently, comedian Jimmy Kimmel on his ABC show made some comments about MAGA and the death of political activist Charlie Kirk. FCC Chair Brendan Carr, speaking about FCC oversight of the public interest obligations of stations like ABC, stated: “These companies can find ways to change conduct to take actions, frankly on Kimmel, or there’s going to be additional work for the FCC ahead.” Many took this as an infringement on freedom of speech. The situation, however, illustrates the complexity of some speech situations. The FCC has the right to regulate speech like deliberate distortions as part of public broadcasting rules, this can include “hoaxes,” which involve stations broadcasting “false information about a crime or catastrophe.” Analysis of many free speech situations must take into account caselaw as well as other rules and regulations.

Confusion over when speech is protected

 Perhaps it is the complexity of the law about freedom of speech, or the lack of civics classes in the schools, but many now do not understand when or what speech is protected, even apparently at the highest levels of government. The government, in general, cannot restrict speech based on its content even if the speech is hate speech, disgusting, loathsome, or unpopular. Hate speech is protected. But a public speaker may not incite violence or create a true and immediate threat. Attorney General Pam Bondi did not appear to be tracking with what the law actually says when she stated, “there’s free speech and then there’s hate speech, and there’s no place [for that].” Former Vice-Presidential candidate and Minnesota Governor Tim Walz showed his ignorance of the legal protections of speech in 2022 when he stated, “There’s no guarantee to free speech on misinformation or hate speech, and especially around our democracy.” In one survey, 34% of college students surveyed said that it is okay to use violence to stop speech on campus. There is a crying need for Americans to understand the distinction between speech including hate speech that is broadly protected and other speech like public speech that incites violence which is not. 

Supreme Court decision upholding free speech

 Justice Sotomayor, writing in May 2024 for the unanimous opinion of the US Supreme Court in another First Amendment freedom of speech case, National Rifle Ass’n v. Vullo, stated that coercion by the government is not constitutionally permissible and that “[g]overnment officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” She continued that “the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or …. through private intermediaries.” (Emphasis added). Since the Biden administration’s pressure on social media was selective because only certain people were censored, under Vullo the actions of the Biden administration in pressuring social media would be unconstitutional.

For practitioners, not just freedom of speech but freedom of practice

 Of course, during the COVID-19 pandemic, this infringement on freedom of speech harmed health freedom, as doctors trying to come forth with alternative treatments were deplatformed and silenced. Doctors and lay people sharing information about masking or vaccines were censored as vectors of “misinformation” or “disinformation,” even when strong scientific evidence indicated that the points made were valid and that the practices the information criticized were not themselves based on science and in fact were causing harm. For many medical professionals, speaking up against medical dogma led not just to deplatforming on social media, but also to loss of employment and even their medical licenses. Doctors and others were censored and some even had their right to practice revoked. The public lost valuable information about health and damage was inflicted including at times death. 

Expanded practice laws to protect practitioners

 But what of less obvious infringements of freedom of speech? Medical doctors must practice according to the “standard of care.” What is that? It is not a scientifically based standard nor is it written down by the state medical board, rather, it is a community standard of care. Doctors are required to use the type of care that other reasonably competent health care practitioners would provide under similar circumstances. So, what is a doctor to do when they wish to replace the usual use of a toxic drug with a non-toxic but more unusual alternative? The “standard of care” can lead to mediocrity and suppresses innovation, especially during public health scenarios like the COVID-19 pandemic. Doctors not only fear speaking out but fear practicing outside of this “standard of care” because their license is on the line, and even potential civil charges, if they do not do what other doctors do. One solution at the state level to protect freedom of speech and practice for doctors is to pass Expanded Practices laws, which allow doctors to use practices outside of the standard of care as long as they meet the requirements set forth in the Expanded Practices laws.