MacLean Gander is retired from a long career as a professor and administrator at Landmark College. A former member of the board of directors of Vermont Independent Media, he was a longtime volunteer investigative reporter and columnist for this newspaper.
RIO DE JANEIRO, BRAZIL-I was reading a sports article a few weeks ago and tried to click through to a clip when I was told that the social media platform called X was not available. I went to my own account to check, and it was true: I was blocked from X.
It wasn't anything I had done: I've been living in Brazil this year, and X had just been banned. It was a strange feeling to be experiencing directly something that people in the United States were just writing about.
You probably know the story.
Brazil has regulations about spreading disinformation online, and the Supreme Federal Court put Justice Alexandre de Moraes in charge of enforcing them. He found that several right-wing accounts on X failed to comply with these regulations and asked that they be blocked.
Elon Musk, owner of X, refused and then failed to appoint a legal representative here by a court-imposed deadline, which caused Moraes to ban access to the site in a ruling that also promised to punish individuals who tried to circumvent the ban by using a virtual private network (VPN) to access the platform.
Much of this has to do with former Brazilian President Jair Bolsonaro, a right-wing politician whose policies and actions resemble Donald Trump's in several ways. The most significant was his refusal to accept the results of the 2022 election here and his attempt to foment a coup in the military, along with an insurrection attempt by supporters which caused extensive damage in the capital city of Brasília.
Bolsonaro, like Trump, faces a variety of criminal charges connected with his presidency and his failed coup. Musk himself has evinced strong support for Bolsonaro, as he has for Trump, and Bolsonaro is one of the strongmen, like Viktor Orbán in Hungary, who has won praise and support from Trump and his supporters in the United States. His political forces remain strong in Brazil, which like the U.S. is deeply polarized politically.
After more than a month of rhetoric Musk finally caved in and did what he had to do for X to open in Brazil again. His motive was financial: X is reported to have about 21 million followers in Brazil, and Brazil is a significant source of revenue for the company, which has lost money and value since Musk bought it.
It's worth noting that in another instance in which X was asked to block political speech - by Narendra Modi, the authoritarian prime minister of India - he complied.
It seems clear that Musk's interest in owning X is mainly political rather than commercial, and X is an important platform for right-wing views, though Trump himself still primarily uses his own Truth Social platform.
Musk has endorsed Trump, frequently posts disinformation in support of Trump's false claims, and recently made a campaign appearance with Trump in Butler, Pennsylvania, where a gunman tried to assassinate the former president in June. Trump has promised Musk a role in government if he wins in November.
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All of this has caused me to think about the role played by the First Amendment and U.S. free speech absolutism in the current era.
In the United States, Brazil's ban of X was condemned as an attack on free speech, though the action itself was consistent with Brazilian law and upheld in a ruling by Brazil's Supreme Federal Court.
Few nations have as broad a conception of the freedom of expression as the United States. Germany, France, the United Kingdom, and several other European nations regulate speech more strictly, often including specific bans on Holocaust denial, hate speech, and disinformation.
For most of my life, upholding the First Amendment has been mainly a left-wing cause, from student movements in the 1960s, to the publication of the Pentagon Papers in 1971, to the 1989 Supreme Court ruling in Texas v. Johnson that burning the U.S. flag represented "symbolic speech" protected by the Constitution.
However, while the seminal freedom of speech figure might have been Mario Savio of the Free Speech Movement at the University of California at Berkeley in 1964, the issue of free speech has always been complicated.
This reality is exemplified by the American Civil Liberties Union's support of the National Socialist Party of America's attempt to receive a permit to march in Skokie, Illinois, a town with a significant population of Holocaust survivors. The ACLU won that 1977 case, and Nazis were able to march in Skokie.
More recently, the right wing has championed free speech, particularly in relation to college campuses, including instances where some have been prevented from speaking and supporters of Israel have been disinvited from speakers' panels.
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Perhaps more importantly, the First Amendment has provided a basic, essentially unassailable platform for the torrent of disinformation and lies that have spewed from Trump and his supporters since his entry into politics nine years ago.
The disinformation is spread, in varying degrees of falsehood, on platforms as various as Fox News, Newsmax, Breitbart News Network, Gab Social, One America News Network and, of course, Truth Social and X.
Among the litany of lies: that Barack Obama is not a U.S. citizen, that Trump won the 2020 election, that the rioters in the violent Jan. 6 insurrection attempt are not criminals but patriots, that the United States is being overrun by millions of criminals who are here illegally, that Haitian immigrants in Springfield, Ohio are stealing and eating pets and, most recently, that the federal government is deliberately withholding support from flood-ravaged areas in red states affected by Hurricane Helene, a claim one can see repeated often on Facebook posts about the disaster.
One of the outcomes is that a substantial majority of Republicans actually believe that Trump won the election in 2020. A further consequence is the likelihood of civil unrest if Trump loses in November. Whatever happens, the persistence of lies and their impact will be with us for a long time, and disinformation will almost certainly play a significant role in future elections at every level.
In the recent vice presidential debate, Democratic nominee Tim Walz used the old expression that you can't "shout fire in a crowded theater" as a way of talking about how the limit to free expression comes when speech might create panic or violence. The phrase was first used by Justice Oliver Wendell Holmes Jr. in an opinion in a 1919 case involving anti-draft leaflets, as an example of how speech can be limited.
Critics of Walz argued that he misunderstood the meaning of the phrase but, in fact, I think that he was using it in its original meaning, one that I learned about in high school - that freedom of expression reaches its boundary when it directly causes harm.
The principle was clarified in a 1969 ruling in Brandenburg v. Ohio that speech can be limited only when it incites imminent lawless action and that, based on that ruling, Walz was probably exceeding the protection that case law provides from the harm that First Amendment absolutism can cause.
But he was raising an interesting point.
At what point should lies uttered by a public figure and promulgated on that person's behalf by supporters through information networks designed to serve their interests cause us to reflect on First Amendment absolutism and consider whether some forms of speech should be regulated?
Would we be better off with regulations like Brazil's?
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It's obvious that if someone puts out a call on X to "come to the Capitol on Jan. 6 and bring your weapons," they are not protected by the First Amendment. But what if someone says at a rally not far from the Capitol that the election was stolen from him and that it's time to "fight like hell," then suggests that he will be there with them?
That's basically the case against Trump right now, though in far more detail, as the recent refiling in the Jan. 6 criminal case demonstrates.
It's not clear what will happen in the case if Trump loses the election - it's possible he could be convicted and be sentenced to prison. If he wins, the case will vanish.
It is hard to imagine that any election has ever had higher stakes than this one.
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Much of the world lives in nations where, as a matter of law, saying the wrong thing in public can land you in prison. That's true in Russia and in China, true in most nations of the Middle East, true in Cuba, Turkmenistan, Eritrea, and Venezuela, true in many other nations as well.
One of the strongest arguments against any diminution of First Amendment protections is that the same laws used against one political side can be used just as easily against the other when the tables are turned.
Living in Brazil, I've watched the footage from the efforts of Bolsonaro's supporters to overthrow the government, and it is at least as ugly as the footage from Jan. 6. I've read about his attempts to enlist military commanders to stand with him in an attempt to hold onto power.
I know about his assaults on protections for indigenous people and LGBTQ people as well as the militarization of police tactics against marginalized populations, along with his transferring of state assets to private companies and his rollback of environmental regulations in favor of agricultural interests.
I'm really glad, for Brazil's sake, that his power has been thwarted, and I certainly find it hard to argue against the regulations designed to prevent his supporters from spreading misinformation designed to bring him back to power.
But I'm an American citizen. Brazil is a residence, not a home. And I honestly don't know what can or should be done about the disinformation and outright lies that are the principal currency of one of the two major political parties in the United States.
I don't know what to do about the fact that these lies are promulgated and augmented by one of the richest men in the world, a man who was born in South Africa, became an American citizen in 2002, also carries a Canadian passport, is worth about $240 billion, and bought Twitter as a sort of political play toy.
It's tempting to wish that the United States had stricter laws, like Brazil or Germany or France, but it's not clear that these actually work, and they may even have made the case stronger for right-wing movements in those nations.
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What I do know is that something is fundamentally broken about politics in the United States right now.
It is easy to blame Trump. The relatively stable order of U.S. politics, a stability that broke once before, in the 1850s, but has essentially been constant since the end of the Civil War, was changed in radical ways by his emergence as a central force.
And perhaps it will be the case that Trumpism does not survive Trump. It's hard to imagine any political figure on the right with the same kind of singular popular appeal.
What seems less likely is that the role of lying in American political processes will vanish once Trump leaves the scene. It's hard to have faith in that.
It seems quite possible that when histories are written of this time that the real story will not be Trump himself, but rather the way in which he ushered in an age of disinformation in which the idea of truth became first fragile and then finally irrelevant.
That in itself may pose a risk to democracy that goes beyond what Trump can accomplish on his own, even if he is elected. The easy and almost complete way the current Republican establishment has bought into the lies certainly makes the case.
As I have thought about Trump and his party and the web of lies they spin, I've often reflected on one of my favorite passages in Joseph Conrad's Heart of Darkness, where his narrator Marlow talks about how much he hates and detest lies.
"There is a taint of death, a flavour of mortality in lies," Marlow says.
That seems true to me. I hope it is not the death of our democracy.
This Voices Viewpoint by MacLean Gander was written for The Commons.
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