Misinformation, Censorship and 6 Other First Amendment Topics From VP Debate

Vice presidential nominees Sen. JD Vance of Ohio and Minnesota Gov. Tim Walz met on stage Tuesday night in New York City for their first and only debate ahead of the Nov. 5, 2024, presidential election.

CBS News moderators Norah O'Donnell and Margaret Brennan asked about a range of topics, including the economy, immigration, national security, abortion, health care and international affairs. Amid the debate, the candidates also raised issues related to the First Amendment. Said Vance, "The most sacred right under the United States democracy is the First Amendment."

The recently released survey "The First Amendment: Where America Stands," conducted by Freedom Forum, found that more than half of Americans (56%) say concerns over First Amendment rights will affect the way they vote in the fall.

This article offers insight into some of the First Amendment issues that were referenced during Tuesday's debate and provides links to Freedom Forum educational resources on those topics. Freedom Forum is a nonpartisan, nonprofit organization whose vision is an America where everyone knows, values and defends the five First Amendment freedoms of religion, speech, press, assembly and petition.

Editor's note: Consistent with its tax-exempt status under section 501(c)(3) of the Internal Revenue Code, Freedom Forum does not participate or intervene in political campaigns. This article should not be viewed as an endorsement of or opposition to either candidate or any statements made by either candidate.

Debate topics and the First Amendment

In the final minutes of the debate, Vance and Walz discussed multiple First Amendment-related topics, such as free speech, misinformation, peaceful protest and censorship, and how they play out in U.S. public life.

Here is a breakdown of those topics, what Freedom Forum's 2024 survey found, and where you can read more about them through Freedom Forum educational articles.

In July and August 2024, Freedom Forum surveyed 820 Americans nationwide asking about their knowledge and understanding of their First Amendment freedoms. Freedom Forum has produced this survey annually since 1997.

Peaceful protest

What the First Amendment says: The First Amendment protects the right of the people peaceably to assemble. But it does not protect conduct such as vandalism, trespassing, breaking and entering, or assaulting another individual. In addition, the time, place and manner of protests can be limited as long as the government is not seeking to restrict the protesters' messages, uses narrowly crafted restrictions, and applies those restrictions equally to all speakers. Protests on college campuses have raised awareness about the right of assembly, particularly where, when and how protests occur in an environment whose primary mission is education.

Where America Stands: Freedom Forum's survey offers insights into Americans' views on protests, including:

• More than half of America (51%) says organizers of a protest or demonstration should be held liable if violence occurs, regardless of who caused the violence.
• Specific to campus protests:
  • 83% say that college students have the right to protest invited guest speakers whose political message differs from their own personal views.
  • But about half (49%) of Americans say campuses need to crack down on protests because they undermine education and make students feel unsafe, while 21% disagree and 30% weren't sure.
  • Nearly three-quarters of people (72%) feel a peaceful protest is fine, but taking over campus buildings and creating encampments goes too far.

Read more:

• What Is Freedom of Assembly?
• Heckler's Veto: Shouting Down Controversial Speakers
• Can You Protest on Public Property? The First Amendment Guide
• Protesting on College Campuses: FAQs
• 15 Freedom of Assembly Examples You Should Know
• What Are Time, Place and Manner Restrictions?

Censorship, big tech and misinformation

What the First Amendment says: In the First Amendment context, censorship refers to a government action to stop someone from saying or doing something, to restrict access to information or ideas, or to regulate social media companies. In the social media and big technology context, it might refer to social media companies choosing to take down posts they believe violate their standards. The important distinction is that the First Amendment applies only to actions by the government. As private entities, tech and social media companies can censor or ban content or speakers based on their own criteria, such as preventing the spread of misinformation and disinformation. However, the government forcing or pressuring a social media company to take down content or ban a user could violate the First Amendment, as both users and social media companies have free speech rights. In its 2023-24 term, the U.S. Supreme Court indicated that preventing a social media company from moderating content or banning users could violate the First Amendment.

The First Amendment broadly protects freedom of speech and freedom of the press. To legally punish misinformation or disinformation, the government must show that the speech in question falls into one of the clearly defined categories of speech that lacks First Amendment protection (such as defamation) or that the speech is clearly harmful and that the punishment is narrowly crafted to address that harm but allow all other nonharmful speech to occur. For example, comedic fake news outlets The Onion and Babylon Bee knowingly publish information that isn't true, but they do it in the form of parody and satire and in a way that is meant as social or political commentary – and sometimes criticism. In other words, misinformation and disinformation are protected by the First Amendment.

Where America Stands: Freedom Forum's survey shows people are concerned about misinformation in the election.

• More than 70% say they're extremely or moderately concerned about misinformation and intentional disinformation affecting the outcome of the 2024 election.
• People are divided over how to address election-related deepfakes. One-third support requiring deepfakes be labeled; 29% would support banning election-related deepfake videos altogether; and 23% say nothing should be done.

Read more:

• Does Government Regulation of Social Media Violate the First Amendment?
• First Amendment Supreme Court Cases: 2023-2024 Term
• Can Candidates Lie in Political Ads? A First Amendment Analysis
• Are Deepfakes Protected by the First Amendment?
• How to Spot 'Fake News'
• How to Spot Deepfakes

Threatening speech

What the First Amendment says: Not all speech is protected by the First Amendment, meaning the government can punish a person for what they say in some cases. A true threat is one unprotected category. A true threat exists when a speaker knew or should reasonably have been aware that their statements could cause another person to fear for their safety.

What qualifies as a true threat under the law depends on several factors, including: 1) what the speaker intended and their state of mind; 2) whether they knew how their speech would affect the receiver and said it anyway; 3) whether they could reasonably carry out the threat; 4) and how the receiver reacted.

Read more:

• True Threats: Is It Illegal to Threaten Someone?

Hate speech

What the First Amendment says: Hate speech is protected by the First Amendment. While hate speech is often thought of as threatening, there are legal differences between what constitutes protected hate speech and unprotected threats. Actions that are violent or cause bodily harm are also not protected.

Where America Stands: Hate speech is protected by the First Amendment, but not all Americans think it should be, according to Freedom Forum's survey.

• Overall, 59% of people correctly know that hate speech is protected by the First Amendment.
• 42% say the First Amendment should not protect hate speech.
• 36% say preventing hate speech is more important than preserving free speech.

Read more:

• Is Hate Speech Illegal? A First Amendment Analysis
• What Speech Is Protected by the First Amendment?

"Fire in a crowded theater" 

What the First Amendment says: Shouting "Fire!" in a crowded theater is often used as an example of why the First Amendment doesn't protect all speech. The actual quote comes from Justice Oliver Wendell Holmes who wrote, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

There is a small but important difference with the word "falsely" in that line that may get lost in the example. If you reasonably think there is danger and are trying to warn people, that is likely protected. If you're intentionally lying to cause a panic and people get hurt in the ensuing chaos, that is likely not protected speech.

Read more:

• Is Lying Protected by the First Amendment?
• Is It Illegal to Yell 'Fire' in a Crowded Theater?

Book banning

What the First Amendment says: The First Amendment protects the right to write, publish and read books, though there are exceptions. Obscenity is one. Banning books involves restricting access to books or completely removing them from circulation in public schools or libraries. A government action to censor books or stop them from being published or distributed is another example of book banning, though it is extremely rare today. Historically, most censorship actions were based on so-called "obscene" content, but the current definition of obscenity is so narrow it does not apply to most books. The First Amendment right to petition also includes the right to challenge books in schools and public libraries. This can cause tension between those who think books should never be restricted and those who want to keep what they see as inappropriate books out of students' hands.

Where America Stands: Book bans and challenges in public schools and libraries are topics that regularly make headlines. Americans have feelings about why such bans or challenges can take place, according to Freedom Forum's survey.

• 47% say it's OK to limit access to books in middle schools if there is sexual content, while only 26% say the same for high schools.
• 38% say access "should never be restricted" in middle schools, though that number jumps to 56% for high schools.

Read more:

• What Is Book Banning and Is It Unconstitutional?
• 15 of the Most Famous Banned Books in U.S. History
• Is Obscenity Protected by the First Amendment?

The First Amendment

What is it: The First Amendment protects the freedoms of religion, speech, press, assembly and petition from government interference. It means the government can't punish you for or stop you from practicing your religion, what you say, what you report, who you gather with, or for asking for change. The First Amendment applies only to government actions and not to actions taken by private businesses, such as social media platforms, or other nongovernment entities like private schools.

Where America Stands: Freedom Forum's survey found:

• 93% of Americans say the First Amendment is vital.
• 77% say they understand how the First Amendment affects their daily life.
• 63% say the First Amendment should never be changed. When asked if it were up to them to approve or ratify it today, 58% of respondents said they would do so.

Read more:

• What Is the First Amendment?
• Why You Should Care About the First Amendment
• Where America Stands on the First Amendment: By the Numbers

For more articles about the First Amendment and how to understand issues that affect your freedoms of religion, speech, press, assembly and petition, see the resources on Freedom Forum's website, sign up for our weekly newsletter, and follow us on X, Facebook, Instagram and TikTok.

Information from previous Freedom Forum articles by Kevin Goldberg, Gene Policinski, Karen Hansen, Scott A. Leadingham and other fellows and contributors was used in this article.