The first amendment to the United States constitution reads, in part, “Congress shall make no law… abridging the freedom of speech, or of the press,” and this has been extended quite a bit by the courts. For example, “freedom of speech and of press is accorded aliens residing in this country,” (Bridges v. Wixon, 326 U.S. 135, 148) and anonymity is protected as well (Talley v. California, 362 U.S. 60). These critical rights have both positive and negative repercussions, one of which has been particularly salient in the past year; propaganda. The question I’d like to ask is a simple one; what rights do foreign governments have to intentionally seek to disrupt the internal affairs of the United States?
The obvious answer,of course, is none. Bluman, et al., v. Federal Election Commission reaffirmed this, saying “The Supreme Court has long held that the government (federal, state, local) may exclude foreign citizens from activities that are part of democratic self-government in the United States.” The question, however, is how this is operationally possible given the current landscape of speech and propaganda. Can the money from an untraceable “Super-PAC” be constrained to US funds alone, given the complex web of international financial ownership that exists? Can we really ensure that our political candidates and appointees are not under the influence of foreign intelligence agencies, given their right to privacy? Can we guarantee freedom of speech to Infowars, however blatantly false and obviously insane, while restricting true accounts from RT.com used as disinformation?
The US Constitution famously begins with a purpose; “ to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” These goals are praiseworthy, but no rights nor obligations emerge from them. The president swears to defend the constitution, but it seems clear that he cannot be impeached for failing to insure domestic tranquility, or for undermining the blessings of liberty. The first amendment clearly isn’t intended to allow armies of Russian trolls to masquerade as citizens on Twitter — but that intent seems hard to reconcile with the first amendment rights of anonymity.
The question we need to ask is how we can insure domestic tranquility while respecting the rights of our own citizens to anonymously and freely express themselves. I do not have an answer, and I’m deeply worried that the two are not compatible.