Fact-check this

 Among the corporate media “fact-checks” of the great debate between Senator Vance and our overmatched Minnesota Governor Tim Walz, I have yet to find one that homes in on the fundamental question of free speech. When Vance brought it up, Walz vomited up his ignorant take on the law of free speech: “You can’t yell fire in a crowded theater. That’s the test. That’s the Supreme court test.” That’s what the man said. It would earn an F in a high-school civics course let alone a course on First Amendment. You’d think it might be worth pointing out with respect to a candidate who aspires to be “a heartbeat away.”

The Supreme Court test comes in two prongs set forth in Brandenburg v. Ohio: (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.”

You can tell that Walz’s hometown press hasn’t tested him. Walz is a tribute to the pathetic performance of the local corporate media to act as anything but cheerleaders for Walz and his “let’s go crazy” Democrat colleagues in the legislature. The Minnesota corporate media ought to be profoundly embarrassed by the revelations of Walz’s lies since Harris named him her running mate and yet they (the Minnesota corporate media) persist.

In his USA Today column on Walz’s disquisition on free speech, GWU Law Professor Jonathan Turley points out that Walz was “quot[ing] the line from a 1919 case in which Supreme Court Justice Oliver Wendell Holmes said you do not have the right to falsely yell fire in a crowded theater. It is the favorite mantra of the anti-free speech movement. It also is fundamentally wrong.” The case was Schenk and, as Professor Turley also points out, “Schenck was effectively overturned in 1969 in Brandenburg.”

Professor Turley in addition commented on X: “Asked about the largest censorship system in our history, Walz suggests that the Internet should be treated as a giant crowded theater where opposing views are a cry of fire…”

On March 25, 2020, Walz declared an emergency under Minnesota law and wielded tyrannical authority for the following 15 months. Having been limited by the narrow Republican majority in the Minnesota state senate, Walz relished the power. He lied compulsively before, during, and after the period of one-man rule.

Walz’s failure to understand or respect the limits of government authority in the matter of free speech matters. The Walz administration threw me out of its Covid briefings when I asked a critical question by email (that was forwarded to his staff for oral discussion, i.e., discussion in unwritten form). That’s how Walz treats members of the one or two members of the local media who commit lèse majesté.

When I figured out what they had done and why, I found a brilliant lawyer to represent me. I sued the Walz administration and came away with more than I had a legal right to obtain. I recounted the story of my close encounter of the lawless kind with the Walz regime (at length) in “Media access in one state revisited.”

Scott W. Johnson is a Minneapolis attorney. For more than thirty years Scott has written with his former law partner John H. Hinderaker on public policy issues including income inequality, income taxes, campaign finance reform, affirmative action, welfare reform, and race in the criminal justice system. Both Scott and John are fellows of the Claremont Institute. Their articles have appeared in magazines including National Review and the Weekly Standard as well as newspapers including the New York Times, the New York Post, the Minneapolis Star Tribune and the St. Paul Pioneer Press.

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