Here is the erstwhile journalism foundation, Poynter, campaigning for red flag laws.
Here’s a thought experiment:
Let’s imagine a law that empowered a court to temporarily nullify the free speech rights of journalists who are accused by a third party of being potentially dangerous. Let’s imagine that the nullification could be enforced before the journalist even had a chance to respond to any of the allegations leveled against them. Would Poynter argue that the proper standard of due process was met? Because that’s what numerous red flag laws allow.
Let’s then imagine that this law demands the journalist prove their innocence, rather than the state prove their guilt, before reinstating First Amendment rights. And until the journalist can offer a compelling enough argument to convince a judge that they would not commit a crime in the future, the state would continue to strip them of their rights. Would Poynter argue that such a law lacked proper due process? (Considering journalism’s embrace of censorship, perhaps not.)
Let’s imagine now that the law also allowed the free speech rights of journalists to be canceled, not over a pre-crime, but because of “overblown political rhetoric” — as the ACLU, hardly the NRA, warned about Rhode Island’s red flag law. Does Poynter believe people who are offended by, say, social media posts should be able to petition a judge to shut down the rights of individuals? Does that law meet the proper standard of due process? (Again, these days, I’d be nervous to hear the answer.)
Or let’s imagine that the law also permits cops to show up at the home of the journalist, search it, and demand they hand over property, without offering any evidence that they committed, or ever planned to commit, a crime. Do laws that allow the authorities to circumvent normal evidentiary standards and procedures to help in investigations meet Poynter’s acceptable standard of due process? Because red flag laws allow for that kind of abuse.
Whether it’s the First or Second Amendment, the underlying due process arguments remain the same. It’s one thing — an authoritarian thing, for sure — to argue that some of our rights are so dangerous that we should now ignore fundamental Constitutional protections, but it’s another thing to claim that even pointing out this reality is “misinformation.”