Fraud And Free Speech

A recent report from the Czech Republic made me think of Americans’ widespread misunderstandings about what constitutes the freedom of speech protected by the First Amendment.

The most widespread misunderstanding, of course, arises because too many Americans don’t realize that the Bill of Rights only limits actions by government. If Walmart refuses to carry your book, your private-sector boss forbids politicking on the job, or your racist Facebook diatribe causes people to unfriend you after characterizing you in unpleasant ways, those aren’t violations of the First Amendment. Those are examples of people exercising their free speech rights.

But about that Czech incident…

Prague Morning reported on the arrest of Jana Peterková. Peterkova became the first person to be convicted for spreading misinformation in the Czech Republic. According to court documents, she allegedly posted a false message claiming that several seniors died in a nursing home in Měšice after receiving COVID vaccinations.

Now, it is important to note that Peterkova posted a totally manufactured story. She wasn’t sharing an opinion, or weighing in on a disputed factual situation. She recounted a purportedly personal conversation with someone she identified as an employee of the nursing home in question, and she claimed that person had told her that “the ‘mainstream media’ were ‘silent’ after several elderly people died after receiving the Pfizer COVID-19 vaccine.”

However, the identified employee had not worked at the nursing home since May of 2020.

It is also important to acknowledge that the Czech Republic doesn’t have America’s First Amendment, although it has pretty robust protections for free speech. (Wikipedia says “Freedom of speech in the Czech Republic is guaranteed by the Czech Charter of Fundamental Rights and Basic Freedoms, which has the same legal standing as the Czech Constitution. It is the first freedom of the charter’s second division – political rights.”)

One of the conundrums of America’s free speech jurisprudence is locating the line between  speech–communication–and action. Government may not be able to censor my speech, but it definitely has the right to prohibit and punish a number of my possible actions.

And just as communication can occur through action–silent marches, ripping up draft cards, and burning a flag are all actions meant to send a message–wrongful or criminal behaviors can be accomplished via the spoken or written word.

If I call your telephone every fifteen minutes to berate you for something, that behavior is not protected by the First Amendment. It isn’t communication; it’s harassment–and government can punish harassment.

If I criticize you by publishing a book with manufactured accusations, I’ve committed libel. Government can prohibit libel and slander.

If I sell you a cubic zirconium for much more than it’s worth by convincing you it’s a diamond, I’m not exercising my right to free speech; I’m guilty of fraud. Government can punish fraud.

The problem in these situations isn’t that they’re protected speech; it’s evidentiary.

If a police officer overhears two people planning to rob a liquor store, he doesn’t need to wait until they’re at the store with weapons drawn to move against them–but he’d better be able to demonstrate to a court of law that he knew they were serious–that what he overheard was part of the illegal activity–that they weren’t just playing a game, or kidding around.

In the case from the Czech Republic, the evidence was evidently unambiguous. The information Peterkova transmitted was false and she clearly knew it was false, since she’d invented it.

Most of the propaganda being spewed in today’s U.S. is protected by the Free Speech Clause of the First Amendment. Opinions–no matter how nutty–are protected, and far too much of what passes for journalism in this country today, even in the most credible outlets,  is really the venting of opinions. Even though a number of Faux News pundits and their ilk likely know they are dealing in a manufactured reality, proving to a court that they know they are dealing in falsehoods–at least, in the absence of some inadvertent admission– would be impossible.

Overall, the protection offered by the First Amendment is immensely positive. That said, however, the reality of our time is that “censorship” is no longer accomplished by suppression; today, partisans and culture warriors flood the Information environment with enormous amounts of clickbait and propaganda, intended to “drown out” responsible fact-finding, then use the First Amendment as a shield.

it’s a situation that requires a citizenry able to separate wheat from chaff. Civic and news literacy have never been more important.

Unfortunately, the ideologies that motivate the propaganda in the first place also convince partisans that “truth” is information that confirms their initial biases–and increasingly, that illegal and/or illegitimate action–even insurrection– is protected “free speech.”

it isn’t.


  1. This is why we hear opinions sorted out in court. The truth though is an expensive thing. My problem is with hedge fund managers who admittedly make up stories about corporations and short sell them.
    Also many are demanding conformity to their truth. People like Bill Maher and Jordan Peterson true liberals are considered conservative. We have to back up what we say with facts.
    The best way to start a conversation and coach people into freethinking is question what you have heard and admit you don’t agree when you political hero or sports figure is wrong. We definitely need civility

  2. “Facts are stubborn things” – John Adams
    Excellent article. Very concise, well written, and meaningful.

  3. I recently began reading American Marxism and Ameritopia suggested by a union friend to my surprise it is aligning with what my university professors were saying about our future. These ideas are killing our ability to have an economic system that we should want. Stability should help ensure a voting block that helps guarantee our rights. But yhe pendulem swings too hard for the American worker. Here we are looking at Roe vs Wade and another 10-15% dip in our retirement funds. Is this All in the name of big government overreach? Again there is no debate until its too late.

  4. Once again, who is the arbiter of propaganda? The propaganda artists themselves?

    In case you haven’t noticed, the government has turned over the role of censors to our tech companies unless you own cable TV rights or maybe a radio license. And when the government is controlled by the oligarchy, then all of those are propaganda as well.

    So, where do these fact-filled journalists exist?

    The independent voices I follow have all had their channels of communication throttled by the so-called “regulators of free speech.”

    I guess you can go back to a single phone call, but if trying to reach large audiences with the truth is your intention, good luck.

    My own family member said all they want is “to listen to the truth on MSNBC as uttered by Rachel Maddow.” LOL

    Is that a product of unconscious mind manipulation?

  5. “…the Bill of Rights only limits actions by government.”

    “Government” is comprised of the people elected to govern and their administrations and appointees. Is there still a “truth in advertising” law in action? Trump’s cohorts are advertising him and his lies as their product by taking action to overturn the 2020 Presidential Election as their primary selling point. They have proven, and continue to prove daily, that all of them ARE above all laws at all levels by repeating his lies and the few who have been subpoenaed by Congress and ignored them somehow have the right to stall for months before the courts decide IF they have broken any law. Bannon’s court date is in July; he wasn’t even a government appointee when he carried out his subversive acts which led to the treasonous January 6th Insurrection. He was and is a private citizen. We, as private citizens, would all be in jail. His actions and that of others still sitting in government go far beyond “Fraud and Free Speech” and the inaction by the courts is aiding and abetting the probability that Trump WILL return to the White House.

    “Unfortunately, the ideologies that motivate the propaganda in the first place also convince partisans that “truth” is information that confirms their initial biases–and increasingly, that illegal and/or illegitimate action–even insurrection– is protected “free speech.”

    So far, IT IS!

  6. Good morning Sheila!

    Hopefully my conduct on your website has been appropriate. If not, I promise I will do better! That being said, I definitely appreciate the opportunity Sheila presents me to share my viewpoints.

    Now Sheila is gracious, more so than many. And, she has the right to ban someone from speaking abusively or fraudulently On her website. Unfortunately for many, Sheila is not the government.

    “Congress shall make no law respecting and establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

    January 6th Was definitely not a peaceable assembly or an appropriate way to petition the government for a redress of grievances. That seems to me, it should be a prosecutable offence without a doubt. The freedom of press is not protected concerning those who wish to slander or liable others.

    Decades back, S.C.J. Oliver Wendell Holmes Jr., wrote a landmark decision regarding freedom of speech; It stated, “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic.”

    Honesty or, to be honest , means, to be; “characterized by integrity and straightforwardness in conduct, thought, speech , etc , free from fraud. It implies a refusal to lie, steal, or deceive in any way. Genuine, open, Frank, upright.”

    Wow, can one say Fox News is honest? Could one say that the politicians are honest? Could one say that Many business leaders are honest? Can one say that most religion is honest? The press is protected except when fraud or liable is concerned, religion is protected unless it insights violence, The right to assemble is protected unless it is not peaceable. It really seems the government is afraid to rock the boat. When the government fears to uphold its own laws, civil society is on the wain. And that’s too bad! The decay of society is deep into its rot. History shows, It is not reversible.

    An interesting debate concerning religious freedom took place in the 13th century which is very unusual considering it was a time of the dark ages and the crusades. I would suggest You look up Nahmanides and his debate with Pablo Christiani. Christiani was a Jew that converted to Catholicism, But His counterpart in the debate, Nahmanides, A young Jewish scholar from his teens, really Put a dent in many Christian arguments by Christiani. the Christian church was angered at the Kings promise of free speech and an unpunishable debate. And, The Dominican’s kept after Nahmanides, until Pope Clement IV Had him banished from Spain at 70 years old. He was fortunate that the Christians didn’t impale him on a torture stake or Burn him at the stake.

    In the first century, the apostle Paul stated in his letter to the Ephesian congregation in Ephesus, “Let a rotten word not come out of your mouth, but only what is good for building up as the need may be, to impart what is beneficial to the hearers’………..He also said, “Put away from yourselves every kind of malicious bitterness, anger, wrath, screaming, and abusive speech, as well as everything injurious. become kind to one another, tenderly compassionate, freely forgiving one another just as God also by Christ freely forgave you.” (Ephesians 4:29 – 32)

    So, not only is free speech supposed to be honest in government, or to gain government protection, but it’s also expected By The religious organizations themselves. Too bad the government is fearful of enforcing the rules, regulations and laws concerning free speech. Another related issue is, the spreading of conspiracy theories by conspiracy groups and fake news organizations. I mentioned before about the government declaring martial law to clean things up, But, therein lies other problems. Who do you really trust? I guess it also depends on who will do it first. Because the first to do it will probably be the last to do it and make it so that it can’t be undone Buy another executive order from another president.

    Too bad there really are no Alice in Wonderland rabbit holes to drop down, Things would be so much easier wouldn’t they?

  7. Sheila’s comments today seem to be right out of a college level course on the Constitution. I for one would love to read something like this on each of the first ten amendments.

  8. Too few of us practice the art of discernment. Can we be taught to discern wheat from chaff when reading the narratives of our own lives? I doubt it.

  9. Clearly, Fox News is yelling fire in a crowded theater when the only fire is the one in their business plan calling for high audience loyalty to maximize profit.

  10. The Czech situation sounds like a positive development, to me.
    “Free speech” is abused here, where Goebbels would feel right at home.

  11. As an aside, I so hate the “you can’t yell fire in a crowded theatre” argument. The reason your ability to yell fire in a crowded theatre is not protected is because the theatre is privately owned and the First Amendment does not apply. In fact, the First Amendment doesn’t protect your right to yell anything in a theatre.

    Now if the theatre were owned by government (not aware of any that are), the First Amendment would apply and the “you can’t yell fire in a crowded theatre” point would actually apply.

    One First Amendment point I wish got more publicity is that free speech rights does not include the right to shout down speakers with whom you don’t agree. Free speech does not include the right to interfere with other people’s speech.

  12. At its core, the destructive worm in society’s foundation is our endless need to fill empty hours with passive entertainment and the wealth redistribution possibilities that exist in satisfying that condition. That combination demands the theater of advertising, both covert and overt, that we live our lives saturated in.

    Those who society always relied on to specialize in rigorous learning and inspiring thought and action, have been silenced by the raucous marketplace peddling instant gratification at the cost of everlasting debt.

    We are the least common denominator.

  13. Peggy,

    Absolutely! very few people use discernment or, actually no what it is.

    Discernment; common sense, discretion, insight, perception. The appropriate use of conscience, along with acquired knowledge and wisdom, to distinguish right from wrong.

    Separating the chaff and wheat, denotes honesty or purity or righteousness. Chaff is useless to those prepping The wheat or grain for storage and or consumption. Back in the day they used to immediately Scoop up the chaff and burn it So it would not blow back and contaminate the freshly Winnowed wheat. The Winnowing process was symbolic reflecting a person putting on a new personality. Or leaving the old ways behind. A person becoming righteous in their conduct.

    In the evening when the breezes would start to blow through winnowing shed, The chaff would be blown outside and the straw would be blown off to the side leaving the pure grain completely separated from its contaminants. This would allow all of those contaminants to be burned and disposed of. So, and actual process it was also used as a symbolic teaching element.


    SCOTUS ruled in a case called Chaplinsky V New Hampshire. (315 U.S. 568)

    “words which by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are such slight social value as a step to truth, that any benefit that may be derive from them is clearly outweighed by the social interest in order and morality.

    The fighting words doctrine definitely is not protected under freedom of speech, and it does not refer to the government specifically, Although the government is not allowed to use fighting words towards its citizenry.

    other examples of this;

    Terminello versus Chicago; Feiner versus New York; Texas versus Johnson; R.A.V. versus St Paul

    So absolutely, if anyone yells fire in a crowded theater which causes injury or loss, would not be protected, and a person will probably go to jail if arrested. If death is involved probably a person would be charged with manslaughter or possibly even murder. Especially if there was no fire to begin with and the incident was some sort of a prank or protest.

  14. My local newspaper, or what’s left of it, is owned by Gannet, and US Today. They can publish anything they want, and they are getting to the point where they do. Like John Sorg pointed out, in the frame work judeo-christian ethics, we do have some moral responsibility about actually being honest and that should enter into the picture somewhere.

    Yesterday, in the “Indiana” section of the paper, they have an opinion section, and I guess they had a few extra column inches of space to fill and they ran a piece “Vaccine Mandates: There is no exception to the first amendment”. The piece was right wing political propaganda about the right of military to refuse vaccines on religious grounds. It was written by a Texas based lawyer that belongs to a group that is trying to force religion down other peoples throat. I was deeply offended by the fact that an Indiana newspaper could not find somebody in Indiana to put an opinion piece in the “Indiana” section of the power. I was offended by the lack of responsibility for giving this lawyer a platform for additional propaganda. I was offended by the lack of responsibility this displays in a midst of global pandemic, where Indiana hospitals are overflowing and 100+ Hoosiers are dying a day, mainly unvaccinated ones!

    What makes this “editorial” all the more galling is that the deadline for military personnel to be vaccinated was November so the lawsuit and the case was just about propaganda points. I am pretty sure they were all vaccinated or relieved of duty and while they might not get get kicked out of the service now, I am sure they are going to remembered as the guys that can’t follow orders.

    When you sign for the military I am not sure how much religious objections enter into the whole picture. You should have the expectation that you are going to kill the enemy with bullets and bombs. I guess these guys now have the opportunity to attack friend and foe with a biological agent.

    But at the end of the day they have the right to print what they want, but at some point there should be some moral responsibility. This is like yelling “there is no fire” in a crowded theater, when in fact the theater is on fire. People are going to die, but the newly conservative Supreme Court says this is OK because there must be things that top the right to life.

  15. In a recent New Yorker article about right wing radio hosts the author recalled an interview that Rush Limbaugh had once given. The darling of the right, the scourge of President Obama, the creator of the term “Femi-Nazi” lived in a 20,000 square foot mansion. Limbaugh did not discuss whether or not he actually believed the venom he purveyed but clearly indicated that he was in it for the money and for the ability to charge his advertisers outrageous rates. His speech may well have been tolerated or protected but the fact that he was plainly mercenary about it somehow makes it worse. Barnum was right…

  16. This is in response to Theresa’s comment, but in the interests of marketing, I wanted to make it visible to everyone. My small (42 page) book published by Georgetown University Press, “Talking Politics: What You Need to Know Before Opening Your Mouth” provides precisely the information you reference. It’s available from Amazon for under $5.

  17. Paul K. Ogden missed some points regarding “You can’t yell fire in a crowded theater.” First, you can be held civilly liable to those who are damaged by your yelling fire in a crowded theater, and the First Amendment does not prevent the Courts from hearing the lawsuit or enforcing the judgement. Second, the Government can punish you for yelling fire in a crowded theater, and it was in the context of a criminal case that Justice Oliver Wendell Holmes made his famous statement about the outer limit of free speech. Schenck v. US (1919)

  18. Conspiracy by Government officials to overturn our democratic elections, and incite mobs to violence to carry out their plans isn’t protected by first Amendment. Since when has treason been considered free speech?
    In this day and age, with the impact of of “news” delivered into a persons home which causes harm, needs to be addressed. If a person believes Covid vaccine is harmful due to a broadcast or digital false report & subsequently refuses vaccine and falls seriouly ill or dies, all of us are carrying the cost. The stress on healthcare workers is like to war.
    We need like a Ralph Nader of the bad product of lies, fraud & conspiracies that are causing immense harm to Americans. In this day and age with the impact of broadcast speech into a person’s home, private life from mass media seems actionable.

  19. How very sad and now endangering democracy, Rule of Law and the Constitution of the United States of America, that the 1st Amendment freedom of speech does NOT require truth or protect us from propaganda spread by our own government officials. Inciting riots, allowing sedition and treason are being protected by sitting Congressmen and women and upheld by our Supreme Court.

    The example of freedom of speech not covering “yelling fire in a crowded theater” had more meaning years ago when our theaters were a primary source of entertainment. The freedom of the press also does not require truth. The 1st Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” but it upholds government establishing laws such as Pence’s RFRA and anti-abortion laws based on his religious beliefs. Who do we have to complain to or report governmental abuse of power to?

  20. Dan,

    Excellent comment. And yes, you are absolutely correct, that’s one reason why Trump wanted to change the law and allow anyone to sue the newspapers or news media in general. It definitely worked, they scared the living crap out of them.

  21. Sheila: Ordered it. Thanks! Your entire book is likely shorter than some comments to your blog. Such a blessing! You make my world a better place.

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