Free Speech — Applications in the 21st Century Age of Disinformation and Radical Ideological Polarities

By: Adam Zhou

The rise of globalization and rapid digital transformations have allowed every individual voice to be amplified to levels which we have never seen before. As a result, content, no matter its level of factuality, emotive consequence, or general intent, can be spread and then consumed by anyone. At the same time, the amount and diversity of information can be learned at astronomical rates. Leaving these voices unregulated is the notion of free speech, which has been very much integrated into the political sphere in the United States since the drafting of the First Amendment. Partisan beliefs play a role in their stance on the issue. Left-wing proponents prioritize limiting free speech in order to curb the spread of hate speech and fake news, which would otherwise know no boundaries. Right-wing proponents, meanwhile, argue that the upholding of free speech can foster productive, transparent, and growth-focused debate, while avoiding the worries about surveillance and censorship which would otherwise lead to a 1984-esque environment. Though both sides have their merits, by exploring the philosophical and legal arguments of hate speech and fake news, two major factors that contradict freedom of speech, this paper will posit that the First Amendment is no longer sufficient for the issues of free speech that we have in the 21st century. 

The series of unfair prosecutions throughout the late 18th century United States led Justice Oliver Wendell Holmes Jr. to draft up the famous First Amendment in the first place, with the intent to spread the fact that “the ultimate good desired is better reached by free trade in ideas” (Bazelon). Under the administration of President John Adams, the government heavily censored any form of dissent or criticism of their controversial policies. These included the ease of imprisonment or deportation of immigrants who seemed dangerous, the heavy increase in stamp and house taxes for the average middle-income citizen, as well as the ruthless productivity quota rates set at ammunition factories. Many were deemed anarchists and “jailed just for giving out anti-war leaflets” or voicing their opinion on the public domain, such as journalists who were simply doing their job (Bazelon). Especially under a heavily-biased, one-dimensional government, there is a fair probability that this government does not have the right intentions or just be outright wrong in its approach, even if their goal is to correct for negative externalities. The government may also use ad hominem attacks in the case that their agenda is not shared by the general population, a fundamental violation of the First Amendment principle of democracy. 

We see this flawed “presumption of absolute correctness” held by those in power throughout history as well (Wermiel). The Chinese Communist Party was known to sentence dissidents to prison or even exile them completely, as was the case in the Soviet Union and Nazi Germany. Religious extremist groups, likewise, executed those who shared different beliefs, while destroying their cultural relics, in order to maintain a concept of only one absolute truth. John Stewart Mill, one of the most influential British philosophers for ethical theory, as well as the influence for Holmes’ First Amendment, foresaw those dangers. Mill’s premise stated a society that fostered more ideas (and hence less censorship) would lead to a “clearer perception and livelier impression of truth, produced by its collision with error” (Chen). This is similar to the analogy of the marketplace model brought up by Holmes, much like a standard market in economic theory with supply and demand, suggesting that with competition of various ideas (analogous to goods and services), a true equilibrium (of truth) would be met. A general democratic society would have some concept of what is best for them, due to the average power of each individual’s agency to interact or comply with social norms, or participate in the educational system. Superior ideas overpower inferior ones since ideas with more widespread acceptance tend to persist in society. These ideas are the ones that also end up being passed down through the generations. Overall, asserting power back into the hands of the people assures respect for autonomy and the general pursuit for truth. In doing so, the First Amendment also avoids the scenario where totalitarian power takes charge over democratic rule and explicitly annihilates any chance of self-expression, a form of truth and a right in itself. 

However, more recent developments in the fields of sociology, political science, and economics have revealed that the context today, with an age of boundlessly tangled ideas online, is prone to more propagated instances of disinformation, compared to the times of Holmes or even Mill. The First Amendment, in essence, is not equipped to handle 21st century problems. Therefore, a so-called market-adjusted equilibrium to truth would be much more difficult to execute. With the decentralized nature of the internet, many are prone to believe that anonymity precludes accountability, and so anything can be said, regardless of its implications, including fake news and hate-based content, leading to a state of “post-truth” (Blocher). This is especially important from a consequentialist point of view, as even with the freedom of speech argument in place, work still has to be done regarding its protection of the individual’s respect and right to safety. These are rights that hold just as much power as the right to freedom of speech. Hate speech would be a direct opposition against this and would also be in violation of the harm principle, a theory also by Mill himself which states that the actions of the individual should only be limited when it comes to preventing harm to others. Furthermore, there are serious implications when fake news has explicit intent to create an environment of confusion or a biased agenda in the scope of, fraud, politics, and social order, since it “distorts the truth in the marketplace of ideas” (Bazelon). In the case of something as simple as a transactional fraud, someone would purchase a good or service that is clearly not recommendable.

However, it also has implications in the wider political context for instance, where the audience at hand does not have a full set of background information, and causes them to vote in a way that does not benefit society as a whole in terms of welfare. A ripple effect emerges; a country may have a new leader that creates a complete paradigm shift in the way it runs legislation or approaches social issues, just as it had happened in the 2016 United States national elections with Donald Trump’s win. As we have seen, people have lost “faith in the electoral system and the legislative process,” with the “mainstream news media … substantially undermined,” resulting in “overbroad skepticism or perhaps in disenchantment and disengagement with the political system” (Mansfield). Riots, violence, and hate also emerged as a result of fake news. All of this ends up boiling down to the loss of agency of society’s members. Fake news violates one’s self-autonomy as rational decisions made by an individual have a presumption of unwanted information that is not able to be filtered out automatically. With both the issues of hate speech and fake news at hand, chaos ensues over and over again in a loop. And given that major technology companies pander to the wants of the public for profit-gaining motives, whatever “succeed[s] at generating clicks and shares … is what the platforms’ algorithms tend to promote,” people are inclined to believe what goes around in a given environment as is the case with echo chambers (Mansfield). Therefore, with generation passing down information to generation, certain values become the norm. And within each generation, confirmation bias prevails, where people stick to pre-existing beliefs. Studies have also found the prevalence of lies to propagate faster than truth, which further accelerates this feedback loop. One in particular at the Massachusetts Institute of Technology elicits how “fake news evokes much more emotion than the average tweet.... fake tweets tended to elicit words associated with surprise and disgust, while accurate tweets summoned words associated with sadness and trust” (Wermiel). Technology hence acts as a catalyst for building walls in people’s peripheral vision, making the truth so convoluted to the point where a falsehood, no matter its objectivity level, becomes an absolute truth as a result of the surrounding environment. Here, the First Amendment is clearly not achieving an end goal of transparency and truth. 

Nevertheless, it could be argued that legally binding principles such as the First Amendment should not change in the context of unpopular groups, such as the American Civil Liberties Union (ACLU) or radical extremists, as this would undermine the very nature of the law itself. The failures in the previous section would then be a result of a poor execution of law rather than an indication of the failure of the First Amendment itself. To more rightfully execute it, governments would need to not intervene in something as odious as hate speech, in fear of violating the principles upheld by the First Amendment, that is of democracy and truth pursuit. This is because the victims of hate speech are also affected by government intervention of free speech after all, not just immoral agents. A federal judge associated with the ACLU referenced tolerating hate speech as “the best protection we have against any Nazi-type regime in this country” (“Freedom of Expression” ). Like it was stated in the aforementioned, a government has unnecessarily large power to dictate categories of which beliefs are considered correct or not, there tends to be a slippery slope fallacy to an authoritarian regime. With the tendency for the government to lean towards political motive, and history is proof of such, local and federal divisions have had a large majority of cases where this power was used for malicious purposes in acts of discrimination or prosecution even against minority groups. Progressive concepts have likewise been targeted, such as “Margaret Sanger, [who] was arrested for giving a lecture on

birth control,” “trade union meetings … and labor protests [for unfair wages and harsh working conditions] banned, [with] violators sentenced to prison,” and “peaceful protestors for the Black Lives Matter movement jailed for expressing their opinions” (“Freedom of Expression” ). Anything, in other words, that would go against the government’s opinion, is at threat in the presence of anti-freedom of speech policy. The main concern here is not so much regarding the content of what is being censored, but rather the worry of power imbalances. Here, the First Amendment would still be a necessary presence in modern day social events, as long as they are indivisible to all and act as a universal entity. 

Though the ways in which the needs of society have changed when it comes to fake news, there are also proponents who push for how fake news can be essential to the pursuit for truth, even in the context of the First Amendment, hence disregarding the need for government intervention. Here, again, the First Amendment is a pertinent way in the 21st century to uphold freedom of speech by allowing fake news to occur. Fake news is able to attract a more robust set of dialogue with the “potential to attract other speakers to dispute its accuracy” (Chen). These opposing sides can offer critical points on many different facets of a singular topic, as any topic is not simply unidimensional, leading to a more thorough approach to setting up what truth entails. What is more appealing to society in this case is that there is “rational deliberation about important and varied matters” and this process, rather than the final outcome, is what leads society to seek truth, while upholding principles of democracy (Chen). The Supreme Court also follows this principle in the court of law, where in order for evidence brought up in cases, “[speech] must appeal to the listener’s cognitive reasoning processes” (Chen). This kind of speech has value since through the process of rational deliberation it prompts the individual to realize their identity as a human being and the fulfillment of their potential through their own

original thought. Self-identity is just as much of an integral part in the pursuit of self-autonomy and truth discovery, albeit in a more internal setting, and a process of encountering more of these debates and topics brought up fosters that development. The speech component of identity is ever so complicated, and the legal side of what the First Amendment pushes for “fail[s] to explain much of what we value as speech” (Chen). Most of what we know speech to be falls under cognitive communication, with the conveying of information, emotions, and inferences. From a more philosophical standpoint, however, speech serves much more than this, especially when it comes to more internal experiences. This can draw parallels to how art, music, and literature affects society. Though technically not a form of speech, they have “the power to convey cultural, religious, nationalistic, and other social values, and promote emotional expression and experience in its composers, performers, and listeners,” a concept that is also heavily reiterated by Mill (Chen). There is value seen in the individual emotional experience that comes from speech which may be even more powerful than reason and facts itself. Allowing the individual to bask in that is allowing for some sense of experiential autonomy and depriving them of that could be seen as a violation of personal ethics. This is another avenue in which the First Amendment would still need to be kept today. 

There are also social settings where fake news are necessary for a greater good, such as “prevent[ing] embarrassment, protect[ing] privacy, shield[ing] a person from prejudice, provid[ing] the sick with comfort, or preserv[ing] a child’s innocence” (Mansfield). In the court, constitutional protection would allow for let’s say a fortune teller to provide an arguably false representation of a dead one communicating to a living person, as is the case for any semi-false notion of speech, such as “religious prophecy, financial prognostication, and medical diagnosis” which isn’t always completely factually accurate (Mansfield). There may even be instances about how fake news could provide entertainment or a sense of comfort for some people, and depriving that from a few means removing a sense of an individual’s ability to freely experience self-realization. As Edwin Baker wrote, “a person’s autonomy might reasonably be conceived as her capacity to pursue successfully the life she endorses — self-authored at least in the sense that, no matter how her image of a meaningful life originates, she now can endorse that life for reasons that she accepts” (Wermiel). Even if it is false or artificial, just as in the way music or art or literature opens up a new way of viewing the world, fake news can inspire an alternative worldview that is equally as valuable in a social context. Censoring these would be most certainly harmful and once again there is a need for the First Amendment. 

From a holistic perspective, free speech should be upheld and the fundamental pillars of the First Amendment are important, but the protection of autonomy should meet halfway with the prevention of harm and political chaos, which are equally valid concerns. The First Amendment was not predicated on such a state of clutter and disinformation, especially a digital era, and therefore the constituents of autonomy, democracy, and truth, should also “conceptualize the First Amendment … as a Post-Truth First Amendment” (Blocher). In this perspective, the tenet behind what free speech conveys is not the pursuit of truth, given its absence, but rather the “pursuit of knowledge” (Blocher). Rethinking entirely the concept of free speech as an epistemological question of knowledge rather than a truth seeking concept will frame the First Amendment as a much more accurate structure for accountability to what Holmes wanted. Arguments will start to be less centered around what is a fact, in the midst of political divides, and more on the mechanisms of how these truths came to be. Given that “one who wishes to have knowledge must care about whether that belief is justified,” then these more logically and emotionally sound “truths” will emerge above all and a process of “rational deliberation” will start to be normalized in society (Blocher). Going back to the marketplace model theory, this knowledge focus also allows for “directly addressing the broader epistemological crisis in free speech” (Blocher). The clutter of modern information will always yield to disagreements on which ones are right or wrong. However, thinking about this from a knowledge perspective allows for a critical analysis that develops one to consider which sources to use and which institutions to listen to based on their reliability and consistency. This is imperative for any logical decision making process in life and will help have a more long term impact when it comes to the identification of fake news and the appropriate response to hate speech. 

In conclusion, thinking about the intent of free speech rather than the consequences that arise out of it will allow society to come to a consensus with a definition of the First Amendment that protects personal liberties while upholding civil responsibility. Here, one should not worry about the objective truth of a certain belief, or how much more important one belief is compared to another. What does matter is the justified aspect of those beliefs, and the process of thinking that led to that point. Though this is great in theory, food for thought remains in integrating a “Post-Truth First Amendment” into legal institutions. Social theory must become a more common aspect for bureaucratic decision making to ensure that justified knowledge supersedes an objective correct or incorrect statement of fact. In the end, the road to “truth” that is brought by free speech is masked by the long winded path that involves critical thinking, problem solving, and intellectual vitality. These are traits that should be prioritized over all.

Works Cited

Bazelon, Emily. “The Problem of Free Speech in an Age of Disinformation.” The New York Times, The New York Times, 13 Oct. 2020, 

https://www.nytimes.com/2020/10/13/magazine/free-speech.html. 

Blocher, Joseph. “Free Speech and Justified True Belief.” Harvard Law Review, 10 Dec. 2019, https://harvardlawreview.org/2019/12/free-speech-and-justified-true-belief/.

Chen, Alan K. “Free Speech, Rational Deliberation, and Some Truths about Lies.” William & Mary Law School Scholarship Repository,  https://scholarship.law.wm.edu/wmlr/vol62/iss2/2/.

“Freedom of Expression.” American Civil Liberties Union, 

https://www.aclu.org/other/freedom-expression. 

Mansfield, Harvey C., et al. “The Value of Free Speech.” National Affairs, https://nationalaffairs.com/publications/detail/the-value-of-free-speech. 

Wermiel, Stephen. “The Ongoing Challenge to Define Free Speech .” Americanbar.org, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the -ongoing-challenge-to-define-free-speech/the-ongoing-challenge-to-define-free-speech/.

11.10.2025