“There ought to be a private right of action for anybody that’s dissuaded or told something that’s false, that’s the important thing. What they say to people, that’s fine, as long as what they’re doing isn’t deceptive. And we have laws against that. It’s fraud in our state and we’re going to prosecute people for that.”
-Gov. JB Pritzker on CNN
Illinois Gov. JB Pritzker on Aug. 4 put contempt for free speech on full display. The astonishing quote above is from a CNN interview where he was unequivocal that certain speech should be criminalized and the speaker sued when those in power deem the speech false.
CNN pressed him on the issue, giving him a chance to clarify, but he stuck to his position.
“You have a right to free speech, but you don’t have a right to lie,” he said. “You don’t have a right to use those lies to push people into situations in which they, frankly, are breaking the law or where they are unaware of what their full rights are. So, we need to make sure that people know what their rights are.” The CNN video is here and transcript here. Pritzker said much the same in an answer at the end of a separate press conference on Friday.
That’s preposterous as a general principle and completely at odds with established First Amendment law. Even falsehoods are protected speech – knowing falsehoods, too, the U.S. Supreme Court has ruled, subject only to narrow exceptions such as defamation. Those who opposed or supported masks to stop Covid had every right to voice their views, regardless of which was right. Hillary Clinton was legally free to claim Donald Trump was an “illegitimate” president, regardless of whether that was true. Joe Biden can say he knew nothing about his son’s business dealings, even if that’s demonstrably false. The list is endless.
That’s as the law must be. The alternative is authoritarianism.
“The mere potential for the exercise of power [to censor what may be factually incorrect] casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom," Justice Kennedy wrote on behalf of the Supreme Court.
Today, it would be the U.S. Justice Department deciding what speech to prosecute and Illinois Attorney General Kwame Raoul in Illinois. They’ve become notorious for politicized justice, and who knows who will be in charge next.
Pritzker stated his views about free speech while defending Illinois new law targeting crisis pregnancy centers (Senate Bill 1909), although he made no effort to limit his views to that law. Nor could he if he tried, and that’s why his views on free speech won’t work. There’s no limiting principle behind Pritzker’s conception of free speech, and that’s the problem with the law as well. For that reason, your views on abortion or crisis pregnancy centers should be of no consequence in this matter.
But the new law does illustrate why Pritzker’s views are so dangerous. The new law is “both stupid and very likely unconstitutional,” said U.S. District Judge Iain Johnston on Friday while issuing an order blocking its enforcement. Johnson also said the law “is painfully and blatantly a violation of the First Amendment.”
The law targeted alleged pro-life “misinformation” given out by crisis pregnancy groups near abortion clinics.
It was drafted and introduced at the personal behest of Attorney General Raoul himself. Last week, he made the same broad, wrong claims about the First Amendment as Pritzker did on CNN. Raoul told reporters,“You’re not free to lie to people and to use deceptive practices and to sometimes take people away from where they were intending to go. There’s nothing in the First Amendment that protects that type of action.”
That’s wrong, and the law is indeed “stupid” and “unconstitutional,” as the federal judge said who blocked it, which was apparent when it was debated as a bill in the General Assembly. The bill’s supporters ducked obvious questions about what type of statements would be banned by the law.
For example, Raoul’s deputy was repeatedly asked whether the bill would outlaw claims often made by pro-lifers, such as “life begins at conception,” induced abortion is associated with higher risk of miscarriage or the claim that a woman who has taken the first abortion pill may still be able to reverse an abortion.
To those and similar questions Raoul’s deputy only answered, “We would evaluate each case on a case-by-case basis.”
And Rep. Terra Costa Howard, D-Glen Ellyn — the bill’s House sponsor — was asked if saying “abortion is sin” would break the law. Costa laughed and replied: “That would be the Attorney General’s Office to make that determination on a case-by-case basis.” Asking whether claiming “contraception is wrong” would be considered misleading or deceptive got the same answer from Costa.
In other words, nobody knows what would be criminalized under the new law. That problem applies in spades to Pritzker’s broad call for bans on “deceptive” speech.
If courts upheld the law or, worse, endorsed Pritzker’s broad views the consequences would be endless. Courts rule based on precedent. The rationale in one decision gets applied in other decisions to different circumstances. The supposed logic behind a decision on pregnancy counseling would be applied elsewhere. That’s again why your views on abortion should make no difference on this matter.
If pro-lifers’ efforts to divert people away from abortion centers is permissible, what about countless other protests by both the left and the right against places they don’t like? Progressives, for example, have protested for boycotts of War-Mart, Whole Foods and various Trump-owned properties. They chanted and protested outside a Chicago vintage shop earlier this year in a determined effort to shut it down because the owner’s fiancé held “controversial” and “dangerous” conservative beliefs. Conservatives have targets of their own.
All of those protesters would face prosecution and lawsuits if Pritzker’s views were law, being at risk that something they say would be deemed deceptive or false, which would be insane.
There’s a special irony when politicians call for outlawing speech that’s “untruthful” — politicians who have made lying the currency of the realms in Washington and Springfield. Pleasing as it would be to subject them to prosecution for lying, that, too, just wouldn’t work.