The mincing communists over at Salon gave all four of their readers a bad case of the vapors a few weeks ago by calling on Twitter to ban Donald Trump. Their reasoning? He’s, like, rude and stuff. This sort of clueless line-toeing is par for the leftist course with Salon, to be sure, and I don’t intend to waste my time or yours refuting it, not least because I think it would be quite frankly hilarious if Twitter were to ban a popular celebrity loudmouth who will, in a few weeks, also be the sitting president of the United States.
No, what I’ve come to talk to you about today is Peter Van Buren, who is normally a reliable foreign policy commentator, but has apparently acquired some type of Trump Derangement Syndrome Derangement Syndrome, as he’s written an entirely madcap article entitled "Ban Trump, Twitter, and Free Speech" in which he seems to claim that the First Amendment compels the government to nationalize Twitter. You think I’m making that up? You tell me:
Twitter, Facebook, etc., are private businesses and thus not subject to the First Amendment (which only restricts the government from crushing speech) and can make any usage rules they like. But in reality social media outlets have in our age become the public squares of the day, and must be seen and treated as such. For example, when they actually had the guts, good newspapers would go out of their way to print opposing viewpoints, recognizing their status as a public forum.
Still think I’m making it all up? The Little Magician quite clearly states here that social media should be "seen and treated" not as private property, the owners of which can set any rules they like, but as "public squares." That this is absurd goes without saying; let Twitter block and ban and censor all it likes. If it becomes too draconian, competition will arise. As a matter of fact, competition already has arisen; witness Gab, which is currently young and weird and insignificant, but growing. If you can’t tell from the giant picture of the First Amendment plastered at the top of the home page, Twitter’s censorship policy is the exact reason Gab exists at all. People who don’t like that sort of thing are the niche they’re targeting. We don’t need the government to step in and force Twitter to adopt policies we like any more than we needed the government to force 3dfx not to vertically integrate and bet the farm on anti-aliasing.
Let’s delve into this a little deeper yet. What would happen if the government did step in and prevent Twitter from censoring? Never mind the inevitable legal battle; it would happen, sure, but it’s not what I’m interested in here. Let’s just assume that it’s all over and done with, and the government now regulates Twitter as a "public utility." In this world, what would happen to Gab? Remember: Gab’s entire business model is Twitter − censorship + weirdo signup process. It’s safe to assume their legs would get cut out from under them, yes? Sure, maybe kooky libertarians like me would still use Gab just because it’s not a government agency, but most people just don’t care; Gab’s appeal comes not from the fact that zillions of people are closet libertarians, but because those people are sick and tired of having their posts deleted because some crybaby somewhere declared them "offensive," about which, well:
Would it completely end all competition? Who knows? Probably not. What it would definitely do, however, is freeze into place a government-supported status quo and at the very least retard competition.
So yes, yes, Twitter can ban redheaded users (sorry, gingers!) if they want to, but it would be detrimental to our broader national commitment to hearing each other out, including hearing from people we don’t agree with. No, ESPECIALLY hearing from people we don’t agree with. Of course there are also the problems that come up once you start banning people, given how opinions of what should be “allowed” can change as quickly as overnight election evening.
Which is exactly why the government should not be involved, right? Because once it gets involved, there will be a "one size fits all" solution imposed on the entire world, rather than letting competing services with different standards spring up? Do you see?
Let me introduce you to my friends Christian Mingle, Ashley Madison, and Tinder. Say you’re looking to "hook up," as I think the kids still say, but you’re nineteen years old and not Christian (and not willing to lie and claim you are). Should the government step in and declare Christian Mingle a "public square" — after all, it’s about meeting people, which is traditionally something done in a public square — and prevent it from turning you away? Or should you just hop on Tinder instead? What if you’re fifty years old and already married? Surely Christian Mingle isn’t for you. If only the market had provided an alternative!
Now, clearly I’m not endorsing any of these services, or this type of behavior. I’m merely pointing out that the market can accommodate any demand for anything. A little girl of my acquaintance was recently showing me these utterly bizarre expandy colored plastic pellet things she got for Christmas; you’re honestly claiming that the market can supply that but not an uncensored social media platform?
Also, who has such a "broader national commitment?" I distinctly recall not sending back my Broad National Commitment Signup Sheet, so I’m not a member.
In a broader context, it is also always helpful to remember there are no laws against "hate speech" that prevent people from making rough political statements, or even stupid ones. There are laws against inciting violence "Kill all the redheads" [sic] but not against saying they suck or are monkeys.
Just for the record: no, it is not illegal to say "kill all the readheads." I mean, we both just did it, right? One of us at least is not in jail. The actual legal status of comments like that is that they are legal so long as there is time for more speech to counter them; I can write a manifesto saying "as step seven of my plan, all redheads must die" and that’s totally fine. What I cannot do is tell one of my goons "Vinnie, ice the ginger." Unless I run a sushi bar, etc.
The weird thing is that Van Buren must know this; the case that settled it is Brandenburg v. Ohio, which he actually cites to make a different, weirdo point later in this article. To quote from the court’s unanimous decision: "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." So, yes, it is entirely lawful to say "kill all the redheads" except in the absurd limit situation in which maybe you just found a genie lamp and are making your wish.
"You Can’t Yell Fire in a Crowded Theater"
That paraphrase of a paragraph from a 1919 U.S. Supreme Court case, Schenck v. United States, 249 US 47 (1919), written by Justice Oliver Wendell Holmes, is often cited as justification for limiting free speech…
The statement says the First Amendment doesn’t protect false speech that is likely to cause immediate harm to others, three conditions [sic]. The speech must be demonstrably false, and it must be likely to cause real harm (not just offense or hurt feelings, a "clear and present danger"), and do so immediately.
Justice Holmes is a highly peculiar choice for a citation in a piece defending freedom of anything, and speech more than anything else. He wrote the opinion for the court in Schenck v. United States, and the conclusion he reached was that, yes, the federal government can in fact jail people for speaking out against the World War I draft. So, once again, you’re a weirdo, Peter Van Buren.
The libertarian case against Holmes’ specious reasoning is quite straightforward, and hasn’t changed in more years than Walter Block would like me to admit:
The rights of theater patrons can be protected without legally prohibiting free speech. For example, theater owners could contract with their customers not to yell "fire!" (unless, of course, there is a fire in the theater). The contract might take the form of an agreement, in small print, on the back of a theater ticket or a large message on wall posters placed throughout the theater, prohibiting any disturbance of the entertainment or singling out the shouting of the word, "fire!" But however the prohibition appeared, the contract would effectively put an end to the supposed conflict between the right of free speech and other rights. For the person who yelled "fire!" would then simply be violating a contract and could be dealt with accordingly. The situation would be entirely analogous to that of someone under contract to sing at a concert, but who refuses to sing, and instead lectures on economics. What is involved in both cases is not the right of free speech, but the obligation to honor a contract.
In short, the correct answer to the question "is it permissible to shout ‘fire’ in a crowded theater" is "whose theater?"
If you want a less libertarian response, then I’ll see your Oliver Wendell Holmes Jr. and raise you a William Orville Douglas:
Those, then, were the World War I cases [including Schenck — ed] that put the gloss of "clear and present danger" on the First Amendment. Whether the war power — the greatest leveler of them all — is adequate to sustain that doctrine is debatable. The dissents in Abrams, Schaefer, and Pierce show how easily "clear and present danger" is manipulated to crush what Brandeis called "[t]he fundamental right of free men to strive for better conditions through new legislation and new institutions" by argument and discourse (Pierce v. United States, supra, at 273) even in time of war. Though I doubt if the "clear and present danger" test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace.
Check and mate, Peter Van Buren.
And so expression whose ban has been upheld over the long run has been narrow, things the vast majority society agrees are truly dangerous, such as child pornography.
Well hello! I’d like to introduce you to another friend of mine. His name is Fredric Wertham. You may remember him from a book he wrote that said — I’m paraphrasing here, you understand — that comic books are injecting liquid Satan into the precious eyeballs of the youth of America. The Comics Code Authority — established after a massive witch trial held in the senate — dictated the contents of comic books for more than fifty years. It finally dissolved in 2011. That doesn’t strike you as "long run?"
How about my friend Newton Minow, then? He never wrote any books, but he did concoct the immensely quotable description of television being a "vast wasteland." He also said of it that "you will see a procession of game shows, formula comedies about totally unbelievable families, blood and thunder, mayhem, violence, sadism, murder, western bad men, western good men, private eyes, gangsters, more violence, and cartoons. And endlessly commercials — many screaming, cajoling, and offending. And most of all, boredom." Now, one might think that Newt could solve this problem by turning his TV off and finding something else to do. That wouldn’t be very progressive, though, so he set about saving the world from TV shows he didn’t like by using his power — he was head of the FCC at the time, after all — to police the airwaves. And guess what? The FCC is still around. Still policing TV. Still, in fact, arguing that it needs more expansive power so it can police the internet also.
And I’m sure you remember my friend Vladimir Putin. The government currently claims that he’s responsible for every thought you have of which it doesn’t approve. President Obama just a couple of weeks ago signed into law the creation of a Ministry of Truth to censor all information just in case some of it is horrible sneaky KGB lies.
Other than those, though, hardly any censorship at all.
Justice Holmes, perhaps as an act of contrition, later wrote in another landmark case:
The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
So following the broad values enshrined in the First Amendment’s guarantee of free speech, even though it can, Twitter should not ban Trump. Let him tweet, hell, give him 20 extra characters. And let us know, judge, agree, oppose, and argue about what he says. [Emphasis original]
Did you… I mean, did you even read the Holmes quote you just provided? Honestly, Peter. "The best test of truth is the power of the thought to get itself accepted in the competition of the market" is exactly the opposite of "Twitter shouldn’t be allowed to ban people Jack disagrees with."
No, Peter. Twitter should disregard the First Amendment — which doesn’t apply to Twitter, for pity’s sake — and focus on the market. Let Twitter allow or disallow speech in whatever way it pleases. Let there be competitors doing the same. Let the best man win — or, to put it more accurately, let them all flourish so those who want a safe space with no Trump in it can have that, and those of us who want unrestricted speech can have that. What’s the problem again?
PERSONAL BONUS: Writing in a mainstream publication that the president shouldn’t be allowed on Twitter? [Mel Gibson], pull your [Hobby Lobby] together and get a freaking grip on yourselves. If you can’t do that, go hide under your bed and hug your stuffed animal Bobo. You want to worry about authoritarianism? It always includes shutting up people you don’t want to listen to.
PERSONAL BONUS: I got to censor Peter, since he had a potty mouth crisis at the end of his article. The "freaking" was all original, though; one thing I’ve never understood is people who unleash a torrent of curse words and then suddenly start self-censoring in the middle. Commitment!