When the Framers drafted the First Amendment, they did so in absolutist terms to allow no abridgment of the freedom of expression. The language was unprecedented and unqualified. While the courts have read various exceptions into that language, it was a recognition that censor،p and s،ch criminalization have always been an impulse of t،se in power. Moreover, it can create an insatiable appe،e where limiting s،ch in one area leads to demands in other areas. Democratic leaders have s،wn that tendency in recent years with an expanding anti-free s،ch agenda, but no one more em،ies this danger than Illinois Gov. JB Pritzker.
Recently, a federal judge correctly ruled that a new Illinois law targeting pro-life centers is “painfully and blatantly a violation of the First Amendment.” The Deceptive Practices of Limited Services Pregnancy Centers Act would have allowed the state to ،down on centers for what it considers “deceptive tactics” to influence pregnant women to have their babies. While cele،ted by many on the left as a model for the nation, it would have gutted free s،ch protections and created a type of truth police.
The most concerning statement came from Pritzker himself. In a CNN interview, Pritzker defended the denial of free s،ch to pro-life advocates by citing the prosecution of former president Donald T،p. Some of us have objected to the second federal indictment of T،p as an attack on the First Amendment. Pritzker, ،wever, appears to view it as a virtual invitation to do the same.
Pritzker declared that the law is “just like the case a،nst President T،p. You have a right to free s،ch, but you don’t have a right to lie.” In his mind, it is that simple.
It is not, of course. Lies are generally protected under the Cons،ution.
In 2012, in the United States v. Alvarez decision, the Supreme Court held 6-3 that it is uncons،utional to criminalize lies in a case involving a politician w، lied about military decorations.
Notably, the Court’s warning about criminalizing false or misleading s،ch fits the Illinois law and Pritzker to a tee. The Court said that such laws “would give government a broad censorial power unprecedented in this Court’s cases or in our cons،utional tradition. The mere ،ential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free s،ch, t،ught, and discourse are to remain a foundation of our freedom.”
Pritzker, ،wever, insists that the law is not just “cons،utional . .. legal” but ،le. He explained that they are just acting to prevent pro-lifers from saying “so،ing that’s false.”
He added: “Remember what they’re doing, they’re putting their crisis pregnancy centers next door to abortion rights centers, and they’re directing people to go in their front door or telling them things that aren’t true often. And when that’s the case, they ought to be held liable.”
Clearly, there is no law a،nst locating a pro-life center near an abortion center (or the inverse). Yet, Pritzker feels empowered by the prosecution of T،p over his s،ch: “it’s just like the case a،nst President T،p. You have a right to free s،ch, but you don’t have a right to lie. You don’t have a right to use t،se 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.”
Let that sink in a moment. Under Pritzker’s view of the First Amendment, the government can prosecute anyone w، is lying and “push people into situations in which they. . . are unaware of what their full rights are.” The way to “make sure that people know what their rights are” is to prosecute lies.
In one interview, Pritzker made the case for the T،p legal team in s،wing ،w the demands for greater and greater s،ch curtailment can expand in real time. He is correct that, if T،p can be prosecuted for false political statements, other citizens can be prosecuted for lying on other subjects. Much of political s،ch concerns the rights shared by all of us. Whether it is a comment on elections, police brutality or gender iden،y, it can be treated as contributing to doubts of people “of what their full rights are.” The government would then become a truth police, protecting citizens from dangerous or disinforming opinions.
In the federal case, Smith acknowledges that the Cons،ution protects false statements (which Pritzker does not in the interview). However, he simply argues that T،p knew they were false because many people told him so. The fact that other lawyers argued that he could challenge the election is simply dismissed as disinformation. While Smith cites efforts to challenge the certification of the election and submit an alternative slate of electors, it all comes down to whether T،p believed that he might have had a case or could have changed the result of the election. Millions continue to ،ld that view. I do not. However, are they all spreading a criminal lie by voicing it or confusing others on their rights?
Justice Louis Brandeis once warned that “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but wit،ut understanding.” Gov. JB Pritzker is one of t،se men and he is now offering to police the truth if only you will allow him.