First, let me be clear. I am pretty close to an absolutist about the first amendment. Government should not make laws interfering with the freedom of expression, even vile expression, except in such cases where that expression is in itself an act of violence such as child pornography or making an agreement to murder another person or to commit any other act of violence or communication which furthers a conspiracy to commit a crime.
These have been long held exceptions to be applied in only the most extreme cases where the communication is not an expression of opinion or simple conveying of information, but is assisting in the commission of a crime. One can, for instance, charge a person with fraud for sending out a flyer attempting to sell land they do not own. They cannot claim that freedom of the press allows them to send out such letters. Such
But again, those cases are few and far between. I even agree that despicable as they are, White Supremasists have every right to talk among themselves or to others, hold rallies in venues they personally own or have been given permission to use, and create websites spewing their hateful garbage.
That dubious “right to hate” does not extend to every nook and cranny of the country and certainly not to social media or the internet at large.
Well, we need to go back to the Constitution for the answer to that. Let’s read the First Amendment in its totality.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Notice the first five words: “Congress shall make no law…”
Freedom of Speech in constitutional terms means freedom from the government making laws that restrict your ability to express yourself. I might also point out that this means actual laws passed by Congress. Government does have the right, for instance, to restrict its employees through department policy from say speaking to the press about confidential matters or, as in many school districts, participating in partisan political activity at work.
SO, WHAT DOES THIS HAVE TO DO WITH THE INTERNET?
A.J. Liebling said, “Freedom of the press belongs to those who own one.” Today many of us think we own our own presses. In very many ways we do. As long as we don’t post too much copyrighted material, don’t try to sell drugs, raise money for terrorist organizations, or enable child molesters, we are pretty much free to publish whatever we want to do in practical terms. But what we don’t realize is that it really is at the sufferance of the organizations that own the servers, host the web sites, and maintain the social media.
I frequently see Freedom of Speech arguments put forth on social media. Let us be perfectly clear: Freedom of Speech/Press does not apply to social media any more than it applies to any other form of private publishing. Any publisher has the right, indeed the legal and moral obligation, to control what is published through those media owned and operated by that publisher.
The New York Times is not under any obligation to allow you to post on Page One your views about the Mayor of Anywhere, USA and his mistress. Indeed, they don’t even publish every letter to the editor they receive.
Not only do they have that right, they have that obligation. Newspapers, including the Times, have been sued for what was published in their advertising. The legal assumption is that they are responsible for every word published in their paper.
This week, The Daily Stormer, a radical White Supremacist website, had its sites shut down by the ones hosting the site. Google has refused to index the site. This move has forced the site onto the Dark Web which seems appropriate to me.
Many have said that Google and GoDaddy were interferring with their Freedom of Speech. How? By saying you can’t talk racist garbage in my house. Not only did they have the right, they had the moral responsiblity to not enable such hatred.
SILICON VALLEY FINALLY WAKING UP
The internet developed in the 90s and early 00s as a sort of wild west. However, it had a small population and the slow speeds and limited bandwidth acted as natural limits to some of the damaging stuff. Plus, there was the belief that open and frank conversation was good. This is still true. It is good as long as it doesn’t degenerate into cyber-bullying, assisting in conspiracies to commit crimes like terrorism, or intimidating others.
If I open my home as a salon for people to discuss the issues of the day, I have every right to eject someone who begins insulting my other guests, or worse, starts throwing things at them. Not only do I have the right, I have the responsibility to do so.
The social media, specifically Facebook, Twitter and to a lesser extent YouTube, largely abdicated that responsibility. They monitored for spam, made a solid, if sometimes ineffectual, attempt to keep children safe from online predators, but when it came to hate speech, racism, attacks on others because of religious beliefs, even raising money for terrorist groups both domestic and foreign, they sat on their thumbs. The added the right wording to their terms of service, but rarely were proactive.
There are some laudible philosophical reasons for this. I am mostly reporting what they did. I’m not condemning them totally. They had a lot appear on their plates in a short period of time and often found themselves running to stand still with the advance of technology.
Likewise, I doubt any of us two years ago could envision a time when a sitting U.S. president would equivocate over whether or not racism was an evil, and indeed receive kudos from leaders of White Supremacist groups and indeed have one of their man mouthpieces as an advisor. (Update: Steve Bannon apparently has been ousted or resigned. I’ll post more as I get more information)
With the attacks on the social contract, we developed over the last 30 years or so concerning respect of others, sometimes known as Political Correctness, known to me as common courtesy, people are saying things online they would have been considered social outcasts to say just two years ago. The idea that someone would actually under their own name organize a hate rally in a public forum like Facebook was something that wasn’t even on anyone’s radar.
However, regardless of the reasons, social media lagged behind in its responsibility to provide a safe place for discourse. Now, they are trying to catch up and those who had been blythely ignoring the terms of service they agreed to when they signed up are complaining that their “Free Speech rights” which were never guaranteed by either the social media nor the constitution are being violated.
SOCIAL MEDIA SOCIAL OBLIGATION
As someone who has been online for 27 years, and have run websites for 24 of those years, I have always been acutely aware that it was MY responsibility as publisher to control everything from the design to the words to the ads on my site. To this day, I don’t run Google Ads or Yahoo Ads on my pages. I can’t control their content that well. And if it appears on my website, then I am tacitly approving of them.
How much greater responsibility do I have to monitor and remove hate messages. And let’s not get into hair splitting over what constitutes a hate message. Like Justice Potter Steward said in Jacobellis v. Ohio as related to obscenity:
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.
But, at the end of the day, it is not up to the courts or the legislature or some activist group spewing out uninformed drivel about “Freedom of Speech” without understanding what it is and is not. It is up to me as the publisher, it is up to Mark Zukerberg, Jack Dorsey, the heads of Google, Instagram, GoDaddy, all the web hosting companies, and online media outlets to take the moral high ground and when they come face to face with hate speech to “know it when they see it” and not look away, but confront it, delete it, and block the distributor of it. Sure there should be appeals and remedies if someone’s account is hacked or the material accidentally (sincerely accidentally) shared or retweeted and then retracted. Nevertheless, the social media must step up and say, “NOT IN MY HOUSE.”
The web hosting and domain parking servers need to step up and say “NOT IN MY HOUSE.”
Bloggers need to monitor their comments and say “NOT IN MY HOUSE!”
Every Facebook user needs to stand up to “friends” who send racist cartoons, hateful memes, and defenses of white supermacy and say “NOT IN MY HOUSE!”
Edmund Burke said, ““The only thing necessary for the triumph of evil is for good men to do nothing.”
Ignoring, or even secretly chuckling at the racist joke, keeping quiet when someone uses a racist slur, staying silent when someone shares a racist website or tosses off hateful comments as “jokes,” allows the triumph of Evil.
So, as one who publishes on the internet, as one who has an open comment section, be warned. Today, I am open for business. I welcome courteous and respectful comments, but anything demeaning any group through the use of racial, religious, ethnic, sexual slurs. You can disagree with the tenants of a religion but assuming that every member of that religion (and that includes Christianity, Islam, Judaism, Hinduism, Buddhism and all the variants on each) is a bad person in some way will not be allowed. Such comments will be removed without any notice. Also, any sexually explicit, pornographic, obscene, or profane (and that includes the D and H words unless used in their actual theological context) will be removed.
NOT IN MY HOUSE!!