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Top Senate Dem pushes claim about free speech so false even a reporter who believes Constitution is 'very bad' condemns him

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Erin Scott-Pool/Getty Images

Sen. Dick Durbin (D-Ill.) received a lesson in constitutional law on Tuesday after suggesting the First Amendment does not protect against spreading "misinformation."

What did Durbin say?

Progressives are gnashing their teeth over Elon Musk's acquisition of Twitter, and they claim the social media platform will become a cesspool of hate under his leadership.

Durbin echoed those concerns on Tuesday by claiming there is more "hate speech" on Twitter since the sale transaction closed last week. Oddly, Durbin also used his talking point to claim free speech excludes "spreading misinformation."

"In the days since Musk took Twitter private, the platform has seen an uptick in hate speech, and Musk himself used the platform and his influence to spread a baseless conspiracy theory about a violent attack on an elected official’s family member," Durbin said.

"Free speech does not include spreading misinformation to downplay political violence," he claimed.

Perhaps the most ironic part of Durbin's statement is that he is a graduate of Georgetown Law School and currently chairs the Senate Judiciary Committee.

What was the response?

Durbin's claim — that spreading "misinformation" is not protected free speech — was condemned by conservatives and progressives alike.

Even Vox correspondent Ian Millhiser, who believes the Constitution is "very bad" and "should be replaced," rebuked Durbin for the constitutional ignorance of his statement.

"I crafted a snarky and venomous QT that I was going to attach to this tweet, but, out of respect for the senator’s position as Chair of the Senate Judiciary Committee, I will, instead, politely suggest that he might enjoy studying more of the nuances of First Amendment doctrine," Millhiser said.

Others responded:

  • "We simply must start electing people with at least a minimal level of [civic] literacy. This is not that. Embarrassingly not that," First Amendment lawyer Ari Cohn said.
  • "Chair of the Senate Judiciary Committee with a *very* questionable statement," legal reporter Chris Geidner, who is also a lawyer, responded.
  • "I mean it very much does, in a constitutional sense," MSNBC host Chris Hayes retorted.
  • "It’s a scary thing that the most powerful people in our government do not understand the basics of the laws they uphold. The entire point of the First Amendment is that it protects the speech you don’t like. It does not only apply when you’re vibing with it," Reason editor Billy Binion responded.
  • "One day after a major story from @lhfang and @kenklippenstein proving the US Govt and Security State are directing Big Tech on what to censor, the #2 Senate Dem tries to radically restrict what "free speech" means in a way that contradicts all 1A caselaw," Glenn Greenwald observed.
  • "Gee, why was anyone bothered by DHS's plan to establish a 'Disinformation Governance Board'?" journalist Josh Barro rhetorically noted.
  • "Yes, it does. Free speech specifically includes the freedom to spread ideas that some, or even all, others might view as misinformation. Ironically, Senator Durbin’s tweet is misinformation," former Rep. Justin Amash noted.

There are, of course, legal restrictions to the First Amendment, like against "true threats," incitement," and harassment. But "spreading misinformation" is not one.

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