How Vice President JD Vance gets the First Amendment exactly backward

The First Amendment restrains government, not editors.”

Stuart N. Brotman, Digital Media Laureate at The Media Institute

On a recent episode of HBO Max’s “Real Time with Bill Maher,” Maher pressed Vice President JD Vance to break the MAGA habit of treating a Republican loss as a stolen election.

“Under Trump, you guys have two outcomes that an election can be: Either we win, or they cheated,” Maher said. Vance refused to concede the point, but the way he refused should concern every journalist and news consumer. He invoked the First Amendment by name to recast election denial as a free-expression grievance, and in doing so, he turned the Constitution upside down.

Asked to commit to accepting election outcomes, Vance pivoted away from vote counts and toward technology platforms. “The biggest criticism I had of the 2020 election is that you had technology companies that were quite literally censoring negative information about the left and promoting negative information about the right,” he claimed.

Then came the constitutional turn. “So, in a fundamental sense,” Vance continued, “like, if the First Amendment says that we have a free and open debate and then the American people judge based on that free and open debate, the sense in which I think the election in 2020 was rigged” was that platforms had distorted that debate. He framed this as “the more middle-ground argument,” adding that the problem “didn't happen in 2024, but it happened in 2020.”

This is a smoother claim than ballot-stuffing conspiracy theories, which is exactly what makes it more dangerous. And the First Amendment says nearly the opposite of what Vance claims.

The First Amendment restrains government, not editors

Vance’s own framing gives away the error. He says the First Amendment guarantees “a free and open debate” and that private “technology companies” corrupted it. But the First Amendment is not a general guarantee of a balanced debate enforced against private companies. It is a restraint on government. Its entire purpose is to protect citizens and companies from state interference with speech and the press.

Strip the loaded word “censoring” from Vance’s sentence, and what remains is a description of private editorial judgment; companies decide what to host, rank, and amplify. That is not a constitutional violation. It is itself a First Amendment-protected activity, the same discretion every newspaper and newscast exercises daily. When the Vice President calls that election-rigging, he asks us to treat protected private expression as a public crime.

The Citizens United contradiction

Here is the contradiction Vance cannot escape. His own movement celebrates Citizens United v. FEC, the 2010 Supreme Court ruling that government may not restrict independent political spending by corporations because doing so restrains protected speech. The Court held that speakers keep their First Amendment rights even when organized as corporations, and that the state may not discriminate based on a speaker’s identity.

That logic dismantles Vance’s argument. If corporate political expression is shielded from government interference, then private platforms and news companies are equally shielded in deciding what to elevate or downrank. You cannot hail Citizens United as a free expression triumph and then brand corporate editorial choices as facilitating a stolen election. The same Constitution protects both against the same threat: government coercion.

The graver danger to election information is not private curation. It is government pressure on free speech and free press: an administration leaning on regulators, networks and platforms to influence coverage it dislikes. That is precisely the conduct the First Amendment was written to stop. A company declining to amplify a claim exercises a right; a government punishing a company for its coverage violates one. Vance has the two exactly reversed.

Why this matters for the generational news gap

Younger audiences, raised on feeds rather than mastheads, often cannot tell editorial curation from censorship. Vance’s framing weaponizes that confusion, teaching a rising electorate to fear the publisher, the platform and the fact checker, while excusing the only actor the Constitution actually constrains.

Vance has dressed a partisan grievance in First Amendment clothing, and a press that values its own freedom should say so plainly: the threat to voters’ information is government interference, not private editing.

Stuart N. Brotman is Digital Media Laureate at The Media Institute and the author of “Free Expression Under Fire: Defending Free Speech and Free Press Across the Political Spectrum.” He can be reached at snbrotman@gmail.com