SYNDICATED COLUMN: Don’t Fall for the First Amendment = Free Speech Trick

Image result for soviet censorship

Like climate change, this is one of those problems I keep expecting people to wise up about but — because they never do — it keeps getting worse.

Thus this tutorial.

The problem is that too many Americans conflate the First Amendment with free speech.

You see it when people discuss the current social-media crackdown against controversial right-wing radio talk show host Alex Jones and his website InfoWars. Jones was banned by Facebook, YouTube (which is owned by Google), Apple and Spotify, and more recently suspended by Twitter for one week. Writing in The New Yorker Steve Coll mocked Jones for calling himself the victim of “a war on free speech.”

“Such censorship is not unconstitutional,” Coll reminds readers. “The First Amendment protects us against governmental intrusions; it does not (yet) protect speech on privately owned platforms.”

The U.S. government is rarely in a position to censor Americans’ freedom of expression. Because the vast majority of censorship is carried about by non-government entities (like the social media companies blocking Jones) the First Amendment only bans a tiny portion of censorship.

Some government agencies do censor the press. A federal judge ordered The New York Times to halt publication of the Pentagon Papers in 1971. The LAPD, whose pension fund owned part of the parent company of The Los Angeles Times and was angry about my work criticizing its brutality and incompetence, ordered the Times to fire me as its cartoonist. They complied. Annoyed by an editorial in the local paper criticizing them for conducting random searches of high school students at basketball games using dogs, the police in Baker City, Oregon created a fake dossier of crimes committed by the editorial writer, which they used to get him fired from his job.

These cases are covered by the First Amendment. But they are outliers.

We can’t protect existing rights if we don’t understand the current parameters of the law. New rights arise from unfulfilled political needs and desires; we can’t fight for expanded protections without defining what is lacking yet desired. Schoolchildren and student journalists, both public and private, are constantly running up against censorship by teachers and administrators. Employers constrain political speech, obscenity and other forms of expression on the job. These are free speech but not First Amendment issues.

In recent decades opponents of free speech, mostly but not exclusively on the right, have relentlessly conflated First Amendment debates with those over free speech. The effect has been to reduce society’s expectations of how much freedom we ought to have to express ourselves.

Take the Jones case.

Writing for the website Polygon, Julia Alexander provides us with a boilerplate (liberal) response to Jones and his allies’ complaints that the big social media companies are suppressing his free speech. First she described some of the episodes that prompted banning Jones, such as pushing PizzaGate and Sandy Hook shooting denialism. Then she pounces: “It’s not a freedom of speech issue, nor one of censorship,” Alexander writes. “The First Amendment…gives American citizens the freedom of speech…The United States government isn’t bringing the hammer down on Jones. This isn’t a political issue, as badly as Jones might want to pretend otherwise.”

See what Alexander did? In just a few sentences she squeezes and smooshes the extremely broad practice of “censorship” into the relatively tiny box of “the U.S. government…bringing the hammer down.” I don’t mean to pick on her — I’ve seen this same exact ball of sophistry used over and over by countless other pundits.

Of course Twitter, Facebook et al. are censoring Jones. Of course the First Amendment doesn’t cover him here. Obviously it’s a freedom of speech issue. The question — the question pro-censorship folks like Alexander doesn’t want us to ask — is, is it right?

For what is right is not always what is legal (see: slavery). Alex Jones and his allies may or not be legit. Their political arguments often are not. But the question they’re asking here is legit and important: should companies like YouTube have the power to suppress speech — any kind of speech?

Alexander ends with a message you ought to find chilling: “Don’t publish vile content, and your video will probably be a-ok.”

“Probably”?

Who gets to define “vile”? Alexander? Mark Zuckerberg, apparently.

Obviously it is a political issue. But that’s not the main point here.

Free speech used to belong to the man with the means to buy ink by the barrel. Now you can buy a newspaper for pennies on the dollar, but who will read it? Much if not most of the political debate in our civic life takes place on platforms owned, controlled and censored by the companies blocking Jones’ content. They write and enforce their own rules. As private companies they are unaccountable to we, the people. We don’t know how they make censorship decisions or who makes them.

Perhaps this is a splendid state of affairs. Maybe Americans don’t mind surrendering control of political debate to faceless tech giants.

Whatever we decide, however, we deserve a transparent discussion. We ought not to let ourselves be fooled into falsely equating free speech to the First Amendment. Free speech means exactly that: everyone and anyone can say anything at all, anywhere they please, to anyone.

Every First Amendment case is a free speech issue. But only a tiny fraction of free speech issues is a First Amendment case.

(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of “Francis: The People’s Pope.” You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)

Distributed by Creators Syndicate

(C) 2018 Ted Rall, All Rights Reserved.

30 thoughts on “SYNDICATED COLUMN: Don’t Fall for the First Amendment = Free Speech Trick

  1. First they came for Alex Jones (the easiest, most obvious and quite odious target) but I did not care about Alex Jones

    Then they came for the WaPo (CIA “spokespaper”) certified 200 “fake news” sites.

    Then they came for all apparent fledgling groups growing in political awareness.

    Then, etc., etc.

    ———
    Who, Ted asks, will determine “vile” users of social media sites?

    Is he being coy … again?

    • In the blog to which Ted links above, Ms Alexander writes :

      YouTube, Facebook, Spotify, and Apple are all private companies. They’re allowed to enforce their own set of guidelines, and change those guidelines however they like.

      Is that really so ? In the United States, for example, are private companies – indeed, I’m not certain Ms Alexander’s use of the term is correct here, as the stock of some of these firms is, in fact, traded on public exchanges – really allowed to set up their own rules to which, e g, national laws and regulations do not apply ? While that certainly sounds like a neo-liberal paradise, the tenor of Ms Alexander’s argument seems distinctly illiberal to me, i e, that restrictions on free speech are fine, so long as it’s organisations other than the government that’s enforcing them. «Coy» or not, Ted raises here an important point….

      Henri

      • To Henri,

        Think of the alleged “Russian meddling” in the 2016 as a latter day 9/11 political event.

        Cheney/Bush used 9/11 to destroy great swathes of the US constitution.

        I would be surprised if the need to appear to do SOMETHING about Rootin’ Tootin’ Putin was not twisted similarly by the GOP congress.

        That is what’s happening.

      • To Henri,

        Part II

        Yes, Ms Alexander presumably means “private” in the sense of non-governmental. (Perhaps further confusion is caused by their being labor unions of both private companies and “public” governments?)

        Yes, US private (yet publicly-traded) companies are allowed to establish, change and enforce their guidelines as they see fit.

        However, said guidelines ARE subject to federal civil rights laws and, as such, may not be applied exclusively to “protected” groups based on: age, race, national origin, religious beliefs, gender, disability, pregnancy or
        veteran status.

        I don’t think mindless, white, raving, male shitbag is yet a “protected” group but we shall see what Mr Jones’s attorneys have to say about that.

        My use of the word coy has to do with the government summoning the CEOs (at least one: Z-berg/FB) of these companies to congressional hearings. Shortly thereafter, I submit, it is “suggested” that they should “reconfigure” their guidelines according to “government” wishes.

        In the Facebook (i.e. Cambridge Analytica) case, I doubt if there is any real concern regarding the crux of the matter, but, rather, only a collective, congressional butthurt that the “US intelligence community” is not the EXCLUSIVE user of the FB-collected info.

      • «Cheney/Bush used 9/11 to destroy great swathes of the US constitution.» I may be wrong, falco, but my impression is that the US Constitution is nearly infinitely malleable, from >u>Dred Scott v Sanford in 1856, in which it was determined that «[black people] had no rights which the white man was bound to respect» to Citizens United v Federal Election Commission in 2010, in which it was decided that real people had no rights which corporate people were bound to respect. Everything depends on who gets to interpret that Constitution….

        But I agree, Gospodin Putin, like the events of 11 Spetember 2001 (in contrast to thsoe of 11 September 1973), is a handy pretext for destroying the protections that the more naive thought themselves to have under the provisions of that document….

        Henri

      • To Henri,

        Re: The “infinitely malleable” US constitution.

        I hope Frank Luntz doesn’t read this blog!!!

  2. Enough with the hagiography of the writers of the Declaration of Independence and the Constitution.

    “Everybody more or less accepts, for example, that state legislatures can’t pass laws violating freedom of the press. Because that freedom is protected by the First Amendment, such a law would exemplify what most people nowadays mean by unconstitutional. That’s the reverse of what the founders meant by unconstitutional, as underscored by a remark made by Thomas Jefferson in an 1804 letter to Abigail Adams. “While we deny that Congress have a right to control the freedom of the press,” Jefferson wrote, “we have ever asserted the right of the states, and their exclusive right, to do so.” A somewhat jarring assertion coming from our founding apostle of free speech.”

    https://www.laphamsquarterly.org/rule-law/separation-power

      • I’m afraid that you are taking that out of context, my friend. Jefferson was speaking specifically about slander not freedom of the press in general.

        “The power to [restrain slander] is fully possessed by the several State Legislatures. It was reserved to them, and was denied to the General Government, by the Constitution, according to our construction of it. While we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the States, and their exclusive right, to do so. They have accordingly all of them made provisions for punishing slander which those who have time and inclination resort to for the vindication of their characters. In general, the state laws appear to have made the presses responsible for slander as far as is consistent with their useful freedom. In those states where they do not admit even the truth of allegations to protect the printer they have gone too far.” –Thomas Jefferson to Abigail Adams, 1804. ME 11:51

        “The States… retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated rather than the use be destroyed.” –Thomas Jefferson: Draft of Kentucky Resolutions, 1798. ME 17:381

        “No inference is here intended that the laws provided by the State against false and defamatory publications should not be enforced; he who has time renders a service to public morals and public tranquility in reforming these abuses by the salutary coercions of the law.” –Thomas Jefferson: 2nd Inaugural Address, 1805. ME 3:381

      • The determination of a statement as being slander versus a simple statement of truth has always been contentious.

  3. «As private companies they are unaccountable to we, the people.» → «As private companies they are unaccountable to us, the people.» But you’re right, Ted ; we probably don’t want the government censoring the – alas, all too widesread – misuse of personal pronouns…. 😉

    Henri

    • I know it might grate on the ear outside of Ted’s context, but the Constitution refers to the named, collective “We the People”.

      I immediately recognized Ted’s constitution reference and so was perfectly comfortable with the word play of his usage.

      I may not agree with what you say, but may defend (with moderate indifference, in this case) what you say.

      • Glenn, do you really think that the US Founding Fathers would have used the phrase «We the People» as the object of a preposition ? I hope you realise that you are not the only reader here who recognised the phrase from the Preamble to the US Constitution and why Ted chose to write in that matter…. 😉

        Henri

      • “We the People” functions here as a noun, Henri.

        Using “us the people” severs the rhetorical link to the Constitution.

        “I hope you realise that you are not the only reader here who recognised the phrase from the Preamble to the US Constitution and why Ted chose to write in that matter”

        Why would that doubt ever arise in your imagination?

      • «“We the People” functions here as a noun, Henri.» I’m sorry, Glenn, but «function[ing] … as noun[s]» is what noun phrases do. If the object of a proposition, that noun phrase would be written as «Us, the People»….

        «Why would that doubt ever arise in your imagination?» Due to the manner in which you present the most pedestrian observations as flashes of unique insight….

        Henri

      • Well, I will use my precious freedom of speech here to say “fuck you” Henri.

        Don’t be such a turd.

      • «Well, I will use my precious freedom of speech here to say “fuck you” Henri.

        Don’t be such a turd.»

        Turds, my dear Glenn, are people who respond with locutions like «fuck you» to opinions with which they disagree…. 😉

        Henri

    • “Turds, my dear Glenn, are people who respond with locutions like «fuck you» to opinions with which they disagree…”

      Ah, Henri, it appears you have made here a feeble attempt to reduce yourself to participating in a low level of discourse on which you assume that everyone but you operates on.

      You seem to be a person bound by some restraint against directly expressing his anger, always requiring on some subterfuge, to allow your suppressed psychic toxins to dribble out.

      Don’t be thin skinned, Henri. I only say “fuck you” to you in the spirit of camaraderie.

      Let’s continue in the same spirit, turd brain.

      • «… turd brain» Your vocabulary is indicative of your intelligence, Glenn – but we knew that already, did we not ? Alas, in addition to revealing their posters for the fools they are, comments like yours above can also destroy fora like the present as venues for meaningful discussion….

        Henri

  4. Ted,

    This isn’t really about free speech though, either. Like you, I’m of an age where I can clearly recall how people would speak AND think in the 1980s. And this is an issue about how people think (or do not think) and how the forms of popular communication aid OR hinder the expression of complex thoughts.

    Everyone’s on Twitter. You know why? It’s the same reason the Nazi Party was so popular. One person says something, and everyone else retweets it. The retweeters have done NOTHING, but they get to feel that they belong, that they have value, that they have done something. But in reality they’re just like all those people in the crowd doing the arm salute at the Nazi rallies. Doing the arm salute is easy, and anyone can do it. And when you do it, you get to feel that you belong, that you have value, that you have done something. But it reality, you’re just dumbing down the conversation. You’re making it harder for others to do the heavy lifting of deep thought, and because the people who do think deeply aren’t capable of dumbing themselves down, their ideas can’t be introduced into the discussion.

    The Sapir Whorf hypothesis may have to be changed to the Sapir Whorf law soon.

    • I agree, Alex.

      Since a conforming recognition of half-truths is a requirement for full membership in oppositional mobs (such as media bubbles are), and these half-truths (and therefore half-lies, if not just pure bullshit) then become the coalescing “truth” of each mob in alienating it from its Other.

      The program of internally unifying of oppositional mobs and the program of divide and conquer both still work splendidly.

    • wait … people thought in the 80’s??? That’s not how I remember it. That was the decade of Reagan big hair bands, I mean c’mon!

      😀 🙂 😀

      • It was both. People had wicked stupid big hair, but the level of discourse was capable of sustaining longer, more complex discussions than you can now. And I do recall Dee Snyder (it was Dee Snyder, wasn’t it?) speaking to Tipper Gore’s Morality Brigade about rock music. And as I recall it, he was remarkably cogent and made a compelling argument.

        I also recall Cher’s comment to Diane Sawyer in a 1989 interview where Sawyer, attempting to slutshame Cher for that Borat body-thong outfit asked her what shocked her, and Cher’s response was “Presidents that don’t tell the truth.”

        Bonus points for anyone who can explain why that was Cher breaking a two-by-four across Sawyer’s smug mouth. …

      • IIRC it was Frank Zappa facing off against Gore.

        FWIW, I don’t bother with these free speech debates. It leads to a kind of nihilism where we get so wrapped up in a debate on censorship that we miss the fact that we started off discussing the value and content of said speech.

  5. So what’s the answer? Have the government tell FB, et al, what they MUST publish? That’s no good either.

    Alex Jones and his ilk have wrought pain and suffering on those who have already suffered more than anybody should:

    https://www.timesofisrael.com/parents-of-jewish-sandy-hook-victim-forced-to-move-7-times-due-to-harassment/

    Should Jones be held accountable for the results of his speech? Many Sandy Hook parents have been harassed. Are the harassers merely exercising their rights?

    Tough questions, and I don’t pretend have the answers. In general, I’m more inclined to protect the innocent than to enable the guilty.

    so … how about plans for 3D printed guns? I’m not going to give the government the power to decide that information *can’t* be shared. That really & truly is government censorship. Neither am I in favor of arming violent randos who’ve had their right to bear arms revoked (for cause)

    • My response on Jones is that his show is still being run on 40 AM/FM talk radio stations (his claim of 200 is nonsense) and he rents airtime on the shortwave radio station World Wide Christian Radio, plus he still has his websites. He isn’t dead in the water, just back in the 1990s technologically now.

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