Conspiracy-theorist and troll, Alex Jones, and his website, InfoWars, have been thrown off Facebook and YouTube, among other social media sites, for violating their terms of service. The main exception, so far, has been Twitter, despite declining to extend the same charitable attitude toward accounts without the same measure of fame.
Jones is infamous for attacks on the parents of the children killed in the Sandy Hook shooting and for incitements to violence, in addition to discussions of lizard people running the world. The insanity of his claims tempts me to dismiss him entirely, but it is at the limits that we test our commitments. Jones and his ilk, and he is far from alone, operate in a media world that challenges what we mean by free speech.
It is easy to say that Jones has crossed the line, at least with regard to the boundaries of protected speech under the federal constitution. Generally speaking, calling for the commission of a crime or making demonstrably false claims of criminal activity on the part of ordinary people are beyond the pale.
As is child pornography, though that would be better addressed by the inability of children to give consent. I raise that because obscenity is the stepchild of speech, being subject to the slippery test of community standards about what is offensive.
I cannot say that I am offended without hearing Stephen Fry or Christopher Hitchens tell me that I still have to make an argument as to why the speech is wrong. But a lot of people, including some who run social media companies, are of the opinion that if someone’s expression hurts the feelings of another, particularly if that other belongs to a politically favored group, the expression should be restricted. The censoring of users of social media for saying things that run contrary to the politics of the corporation is one example.
But we are talking about corporations, not the government, so the First Amendment does not apply, or so I am told. This view requires us to treat all businesses the same, be they an operation run out of a home office or corporations that have millions of participants. In the real world, social media companies are the equivalent of utilities. They bring people together across large distances, even across national borders. They have become the modern agora, the meeting point where we discuss the nature, purpose, and direction of our society. To say that businesses like Facebook or Twitter get to exist in the marketplace only for their own benefit is the definitive case of socializing costs while privatizing profits. In any case, any rights that corporations claim are derived from the rights of the individuals participating in the group, speech included.
How, then, should we treat expression on-line? The easy answer is to say that the rules ought to be the same, regardless of the medium, but social media creates new layers of possibility. A lot of users are relatively anonymous, and the range is instantaneously global. And since governments and corporations have the same reach today, the balancing effect of ordinary people being able to communicate with each other with fewer limits is essential.
Rights are not dependent on their utility — and in fact are often contrary to what is useful to those in power — but in a practical consideration, we have to pay attention to how rights can be employed and what results may come of that. Expression is the act of one mind sharing itself with others, a chance to be ourselves in the presence of our fellow human beings. It is useful when it introduces new ideas or challenges settled assumptions. For much of American history, for example, the notion that same-sex couples should be tolerated, much less to have the same right to marry as heterosexual couples, would have shocked many hearers, assuming that anyone could have formulated the claim. Over the last several decades, however, a combination of popular culture and a push in the legislatures and courts has brought us to a new reality in which nearly two out of every three of us sees marriage equality as the way things should be.
That certainly did not happen without debate, nor could it have, and the opposition is not silent now. As tedious as it is to argue against someone who claims that gays had the same right to marry someone of the opposite sex as straights, so there was no inequality, one thing that freedom of speech does is to allow people with bad arguments to have their fallacies and bigotry subjected to public analysis. Bad ideas do not go away merely by being denied a particular venue.
It is worth observing here that the flood of right-wing radio, Fox News, and reality TV share in the blame for the rise of Trump. The lazy response would be to shut down those voices, and this is what is being attempted to different degrees on social media, but the usual warnings apply. One of my criticisms of Obama was that he continued the Bush administration’s violations of privacy and due process, and I pointed out repeatedly that when one president creates or maintains a set of machinery, the next president will have it to use. No matter how much we believe that one candidate will win (cough, Clinton, cough), we have to contemplate what the other candidate would do, since the principle that we are a nation of the rule of law, not the rule of personalities applies to all positions on the political spectrum.
While we on the left are accused of substituting feelings for thought, we do have to picture ourselves in the lives of our opponents. How would I feel if I were told that my views are unwelcome? That is not something that I have to work hard to imagine, having grown up among Seventh-day Adventists. As a result, any push to silence expression raises alarms. This is not to say that all speech must be free. Defamation or incitement are actual harms. But silencing any voice should only be done with the greatest reluctance.
The answer to all of this is well known and antedates social media by decades. As Louis Brandeis put it in his concurring opinion in Whitney v. California (1927),
“Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”
This indeed requires courage, but so does life. And a free society depends on it. Social media has become the way that we meet to discuss our needs and goals. As such, it must be broadly free, even for speech that we dislike.