Law Professor Exercises Free Speech Right To Demonstrate That He Doesn’t Understand Free Speech

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Jonathan Turley wants his readers to know that he’s staring down a grievous threat to the very principle of free speech that undergirds American society. It seems that an organization that rates websites for their “false or egregiously misleading” information has decided to evaluate his blog.

Here come the thought police!

Or… not “police” really, because it’s just a private rating company. And not really “thought” because they’re weighing factual truth and falsity. And they’ve not even really “come” because it’s actually THEIR free speech right to say what they want about his website and an advertiser’s free speech and association rights to decide where they want to spend their dollars.

But reality doesn’t slow Turley down, so he’s taken to The Hill to describe a “chilling” encounter with a group seeking to rate websites because he either has no idea how free speech works or sees this as the latest opportunity to gin up a fake free speech controversy to impress his audience:

Conservatives have long accused the company of targeting conservative and libertarian sites and carrying out the agenda of its co-founder Steven Brill. Conversely, many media outlets have heralded his efforts to identify disinformation sites for advertisers and agencies.

Brill and his co-founder, L. Gordon Crovitz, want their company to be the media version of the Standard & Poor’s rating for financial institutions. However, unlike the S&P, which looks at financial reports, NewsGuard rates highly subjective judgments like “credibility” based on whether they publish “clearly and significantly false or egregiously misleading” information. They even offer a “Nutrition Label” for consumers of information.

And, as you all know, the First Amendment clearly states, “Private companies shall make no rating system abridging the right to collect advertising dollars.” Except in the way that it doesn’t say that at all.

Look, one can certainly understand why Turley would have deep concerns over an organization flagging websites for “false or egregiously misleading” information. The GW Law professor routinely makes false statements of easily verifiable facts in both his writing and TV appearances. If he needs to assert that Joe Biden was the vice president in 2018 in order to claim there’s a smoking gun proving Biden abused the vice presidency… by gum Turley’s gonna do it.

But just as Turley enjoys the right to express his opinion of the law — even if it’s predicated on a phony alternate timeline– without fear of government reprisal, the folks at NewsGuard are free to point out his mistakes.

Indeed, that’s how a functioning discourse works.

Of course, what Brill considers nutritious may not be the preferred diet of many in the country. But they might not get a choice since the goal is to allow other companies and carriers to use the ratings to disfavor or censor non-nutritious sites.

So what? The First Amendment contemplates a world where private actors can make their own decisions where to spend their dollars based on whatever metric they wish. NewsGuard tells advertisers if a website traffics in disinformation, and the advertisers can choose to ignore it if they want.

Ideally, this is how a media operates. Entities publish what they want, free from government interference, and advertisers give them money if they want to be associated with the audience the publication draws. It’s why Turley’s friends at Fox News are sponsored by reverse mortgages and dick pills: angry senior white men are the audience they want to reach so they go there. They will not leave just because NewsGuard quibbles with a Hannity report.

“It is a system that includes what Elon Musk correctly called ‘the advertising boycott racket,’” writes Turley. By “advertising boycott racket,” Musk is describing what happened when the advertisers he told to — and we quote — “go fuck yourself,” proceeded to stop advertising with him.

Yeah, it’s a real mystery what happened there.

Though Turley’s disdain for boycotts is a one-way street. When conservatives mounted a protest campaign against Disney for mildly chastising Florida for its “Don’t Say Gay” law, Turley was quick to hail it as the invisible hand of the free market at work. He celebrated the idea of conservative backlash hitting Disney in the pocketbook. In reality, Disney’s financial statements revealed that consumers were actually sick of going to three lore-heavy Marvel movies starring lesser known heroes, but the point is Turley thought that IF consumers financially hurt the company for its political stances, it would be perfectly justified in his model of free speech.

And it would be. Boycotts are free speech in action, regardless of which “side” is doing it. This is what he doesn’t understand about the value of free speech (at least in this article and we’ll assume arguendo that really believes what he wrote). Keeping the government out of speech isn’t about nurturing a cacophony of bad opinions for their own sake. It’s about taking the awesome power of the state out of the equation so we as a society can sort out bullshit opinions and shun them ourselves. Say whatever you want, no one is going to arrest you for your opinion… but we’ll judge you accordingly. If Twitter prefers to remain an increasingly white supremacist platform, then they have to respect advertisers don’t want consumers seeing them on board. That’s the calculation. On the flipside, when Disney decides it’s better off ingratiating itself with an accepting society, it has to respect that a bunch of bigots are going to take their money somewhere else. They weighed that out too.

Turley tries to thread his contradictory stances on who gets to boycott by asserting that NewsGuard isn’t REALLY a private actor because they once had a Department of Defense contract to identify foreign disinformation campaigns. Not clear why that project taints any of their other work, but it’s… kind of a theory. The “state action” seems far more tenuous than Ron DeSantis passing laws to financially retaliate against Disney, yet when Turley wrote about that state government punishing a company solely for its viewpoint, the concept of “free speech” was entirely absent from Turley’s article.

He must have had an issue with the word limit.

Gosh, I sure hope for his sake that this isn’t the sort of glaring and disingenuous oversight that would hurt his NewsGuard ranking!

The Most Chilling Words Today: I’m from NewsGuard and I am Here to Rate you [The Hill]

Earlier: As World Cup Shines A Light On Repressive Regimes, Jonathan Turley Focuses On REAL Free Speech Struggle: Private Companies Not Advertising On Twitter
Jonathan Turley Don’t Know Much About History (Part… At Least 5)

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.