Text, scope, and incorporation
The First Amendment to the Constitution prohibits government—not individuals, but government—from enacting any statute abridging the right of free speech, and it was extended to the states by the 14th Amendment. This description, offered by Bob Zadek in his introduction to a discussion with Jonathan Rauch, frames the amendment as a limit on state action rather than private conduct. Jonathan Rauch on the New Attacks on Free Thought (2015)
That framing recurs in a later episode, when Zadek, guest-hosting a different program, lays out the same principle: the Constitution defines the relationship of government on the one hand and its citizens on the other, and the First Amendment generally prevents state and local governments as well as the federal government from interfering with broad free speech rights. He notes that the freedom is not total—inciting violence and the like are not protected—and that the amendment prohibits censorship by government specifically, not by private actors. [[episodes/life_line___guest_hosting__robert_mahoney_on__the|Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023)]]
The same episode elaborates the point about private conduct. Zadek says censorship per se is not illegal: an individual may tell someone not to read a book or watch a television program, and a business may take a position on controversial issues or try to suppress other views, all legally. The law steps in only through the First Amendment, which protects against government interference. [[episodes/life_line___guest_hosting__robert_mahoney_on__the|Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023)]]
Speaking with Paul Matzko, Zadek raises the question of how the amendment applies differently across media. Matzko describes a two-track system: in print the First Amendment is a very high bar to clear and has grown stronger through 20th-century court decisions, while broadcasting was not given full First Amendment protection because of what he calls the scarcity principle excuse. In broadcasting, he says, the government was able to decide who could own a radio station based on whether the speech appealed to those with power and whether it served the “public interest.” The Radio Right and The Fairness Doctrine (2021)
Censorship, hate speech, and comparative law
Zadek describes the United States as the only country that does not have some limitation on free speech, noting that France and most or all of Western Europe have limitations on hate speech even though France assembled a million citizens to protest the Charlie Hebdo killings. He calls it cynical and hypocritical that France jails those who speak hate speech while protesting in the name of free speech. Rauch agrees that America is a real outlier because of the First Amendment, and adds that Hungary used to be the one European country that did not sanction or punish hate speech as designated by political authorities, but that Hungary has since come into the fold. Jonathan Rauch on the New Attacks on Free Thought (2015)
Rauch further notes that United Nations treaties to which most countries are parties actually require nations to punish racially bigoted and discriminatory speech, and that there is now an effort in Europe to expand that to sexist speech. He emphasizes that these limits usually take the form of civil penalties rather than jail, and that the mechanism is bureaucratic—human rights commissions that drag people through investigations if they say something that upsets people, which chills how people speak. Jonathan Rauch on the New Attacks on Free Thought (2015)
Zadek asserts that free speech is in America’s DNA, going back to the founding, and that the United States is the beacon in the world for free speech. Rauch respectfully disagrees with the DNA framing: he recalls a managing editor at his first newspaper job saying that if the First Amendment were put to a plebiscite in the United States today, it would lose and lose big, and he argues that those against restrictions on hateful and offensive speech must remake the case every day because it is counterintuitive. Jonathan Rauch on the New Attacks on Free Thought (2015)
Jawboning and indirect censorship
In a 2023 episode with Will Duffield, Zadek observes that the Supreme Court has been more aggressive than ever in recent memory in protecting First Amendment rights, so the government finds itself more restricted than ever by the inconvenience of the Constitution. Duffield describes a path dependency: formal protections are strong both compared to the past and compared to other countries. He cites law professor Eugene Volokh on the deluge of “cheap speech” the internet has brought—everyone being able to publish almost costlessly what previously would not have warranted the price of postage or paper. Duffield notes that Germany and Turkey have passed laws restricting what people can say online, but that in the United States, because of the First Amendment, politicians upset by what others have said cannot do that; instead they have the capacity to jawbone because they have power elsewhere. The New Face of Government Censorship (2023)
Zadek defines jawboning as the improper exercise of power, in which the government performs improper acts indirectly because it has been given power to do so. He offers an analogy: government cannot control the speed limit, but it can say a locality will be driving on dirt roads unless it accepts federal money for pavement, and if it wants pavement, 55 miles an hour is the limit. He calls this an end run, and says jawboning is a different power than using money but the result is the same—the government gets somebody to do something it is expressly barred from doing directly. The New Face of Government Censorship (2023)
Censorship through noise and the pandemic
In the Life!Line episode, Zadek asks how government’s natural instinct to censor bad news relates to COVID-19. Robert Mahoney answers that governments, terrified and with no capacity to deal with the pandemic, doubled down on censorship to cover their own incompetence and their inability to deal with a once-in-a-century pandemic. He says they masked their actions by controlling information in one of two ways: old-fashioned censorship restricting the flow of news, as in the Soviet Union, China, or modern Russia; or what he calls “censorship through noise,” in which misinformation, lies, and propaganda are thrown at people until they do not know what to believe. He cites social distancing and mask-wearing as examples where the information landscape was so confusing people did not know whom or what to believe. [[episodes/life_line___guest_hosting__robert_mahoney_on__the|Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023)]]
Zadek ties this to the value of exposure to many points of view, saying the best way to learn is to be exposed to as many points of view as possible and sort it out, but that government noise drowns out other views by volume. Mahoney says this phenomenon took different aspects in different countries, that in the United States the confusion reflected confusion in the White House itself, and that there was a desire to cover up bad news and downplay the severity of the disease. He quotes Steve Bannon saying one must flood the zone with garbage to create confusion, and notes that the US had over a million COVID deaths out of six million globally while not representing a sixth of the world’s population. [[episodes/life_line___guest_hosting__robert_mahoney_on__the|Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023)]]
Across episodes
Four episodes touch the First Amendment: Rauch (2015), Matzko (2021), and two 2023 episodes, the Life!Line guest-hosting appearance with Mahoney and the Duffield interview. The treatment shifts register rather than substance. Rauch and Zadek argue over whether free speech is in the nation’s DNA or must be re-argued daily; Matzko introduces the two-track print-versus-broadcasting distinction and the scarcity principle; Duffield adds jawboning and cheap speech as mechanisms by which government works around formal protections; Mahoney supplies “censorship through noise” as a pandemic-era variant. The excerpts show no single arc but a widening catalogue of techniques—from hate-speech law abroad to indirect pressure and informational flooding at home.
What the sources do not cover
The excerpts do not identify the specific text of the First Amendment, nor do they name or analyze any Supreme Court case holding, beyond general references to the Court’s growing protectiveness of speech rights. They do not specify which bill or enabling legislation created the FCC, nor the statutory basis of the Fairness Doctrine. The excerpts break off mid-sentence in several places—including Rauch’s segment and the Matzko episode at a section heading—and those unfinished passages are not reconstructed here.