Shouting fire in a crowded theater that you know is not on fire is not free speech. If you shout fire, liability attaches if there is an intent to do harm, or the act causes harm even if unintended. Government could ban the act of shouting fire as an exception to the First Amendment but it has never specifically done so. Other speech/expression has been banned, like some forms of pornography or incitements to do harm.
We now increasingly live in a political world where, apparently, anyone can gain political followers by creating a government conspiracy out of the reaches of their own theatrical imaginings. How unlike shouting fire in a crowded theater are the theatrical conspiracy theories of Glenn Beck, Bill O'Reilly, Ted Cruz or Darrell Issa? Did not the lead up to the Iraq war, a deliberate deception perpetrated on the public by a minority interest, constitute an abuse of the First Amendment?
Slander, libel and scandal have always been a part of politics. Candidates, political parties and even political orientation have been belittled, accused and brow beaten with little regard to the truthfulness of any of the myriad tales told by ruthless opponents. Individuals have been ruined, candidacies thwarted, opportunities lost and the outcomes have been, at times, dire.
Untruthfulness about an opponent's behavior or intentions will probably always be with us. But the issue of how far free political speech can stray from the truth has begun to test the very usefulness of speech in the conduct of government. Our politics have, at some times better than others, tended to adhere to the truth, at least as far as conventional wisdom is concerned. But we are entering a new era of communication in which a political "talking point" can stray quite far from the beaten path of public consensus and even the lessons of cultural, scientific and economic history.
As bizarre as it would have seemed two decades ago, religious conservatives can now contend that creationism has the methodological scientific equivalence of evolution. We are entering a new dark age of witch doctors who profess that women who are raped can't get pregnant due to some magical physiological defense. We have elected supply side truthers to government for a generation, during which time every granule of their economic philosophy has been thoroughly debunked as useless and even destructive.
Complainants about our dysfunctional government seem hypnotized by the breadth and depth of the political divide without a seeming inkling about how and why that divide got so big and wide. You can lay equal blame on both political sides if you want. But to do so is just intellectual laziness. What has gone on is that the GOP and associated fringe groups have conspired, through some accident of communal social defect or deliberately, to simply ignore the truth, manufacture and propagandize their own world view and ignore and decry as false the mountainous real evidence that contradicts their world view. This callous or epidemic political strategy is so destructive to the political process that the current state of our government is that there is no government. There is blame to be affixed and it attaches to conservatives.
If the GOP is so willing to ignore fact and public sentiment that they will deceive, and distort the facts about any and all public and political issues in order to gain or retain power, then what is the use of the First Amendment, an amendment the purpose of which was antithetical to lies?
When you use the protections of the First Amendment to defeat the intent of the First Amendment then you have obviated the usefulness of it to the democracy it was designed to foster. With billionaires using the power of mass media to deceive a seemingly hapless electorate of the correctness of the billionaire's agenda we might as well repeal it for all the good it now does the public. The most money buys the biggest megaphone of all.
The First was meant to help democracy work. Without it, free speech, democracy is virtually impossible. Conservatives and their rich clientele have now abused the sublime right of speech to the point where it imperils the credibility and concept of free speech altogether. Maybe that's a secondary objective of the political right in their willful or wanton destruction of the medium of human deliberation. Maybe having discredited it's usefulness we can now get rid of it and those pesky voices of reason and justice.
I fear the First will not protect us when the GOP owns and operates all the channels of information to the public. We, then, must gird ourselves to defend the First Amendment from abusers.