The ideal of “free speech” notwithstanding, some speech should be censored. Rules should attempt to prevent it from occurring, and/or punishment should be meted out if it occurs. Justice Oliver Wendell Holmes’s hypothetical of shouting “Fire!” in a crowded theater is one example. Speech along the lines of “Let’s go kill all the _______s!” is another. So are certain misstatements about securities offerings, or in some cases about consumer or agricultural products.
All of this censorship is conducted by the government, not the private sector, and the boundaries of what the government censors are not completely fixed, and never will be. As the law has developed, however, it’s fairly easy to predict what is not allowed. If objections arise about particular acts of government censorship, we have a well-developed court system that does a generally good job of handling them.
The most widespread censorship today, though, is conducted by private internet firms. Social media platforms like Facebook and Twitter are the most prominent censors, but far from the only ones. Even a web-hosting platform shut down a chat site whose content it deemed objectionable.
Some of the instances of private censorship are almost comical. Last summer a Texas newspaper posted a series of excerpts from the Declaration of Independence on its Facebook site, to promote historical literacy. Facebook decided some of these excerpts were “hate speech,” and took them down. The newspaper prudently discontinued the series entirely, lest it be treated as a repeat offender and barred from Facebook altogether. Twitter has banned ads using the term “illegal alien,” even though it appears in the title of federal statutes.
The amount of such private censorship is staggering. In the first six months of 2018, Facebook alone censored over two and a half million items. Google had plans to devote ten thousand employees to the gargantuan task of censoring the entire world by the end of last year.
Conservatives complain that their points of view are disproportionately targeted. The most recent prominent example is Facebook’s decision to shut down Rev. Franklin Graham’s page just before Christmas, a belated response by the social media giant to a post Graham made over two years earlier concerning a North Carolina transgender bathroom law. Graham wrote: “He says the NC law #HB2 to prevent men from being able to use women’s restrooms and locker rooms is going ‘backwards instead of forwards.’ Well, to be honest, we need to go back! Back to God. Back to respecting and honoring His commands.”
I don’t agree with Graham’s viewpoint, but I don’t see anything there to warrant shutting down his page. Nor do I see the justification for Twitter locking down the account of conservative Christian columnist Michael Brown for tweeting that “Christians are being slaughtered in Nigeria—babies hacked up; children brutalized; women raped; people burned alive—while the Muslim govt. does nothing.” His statement is basically true, if you allow a generous definition of the word “nothing.”
In each case the censors backed down after widespread pushback. But temporary censorship for no good reason still has a severe chilling effect.
There is no US law (yet) requiring companies to censor arguably offensive content. There are, though, such laws in Germany, a country with a shameful history of censorship. Punishments now run up to €50 million euros if forbidden words constituting hate speech remain online longer than a single hour. Some German states want to toughen the law even further. India is threatening a crackdown on WhatsApp because the government dislikes what some of its users say. Canadian officials recently ordered the national postal service to stop delivering a newspaper featuring content the government found inconsistent with principles of diversity and inclusion. When President Trump says he would consider “working with Democrats” to regulate social media, I don’t think he’s talking about regulating their advertising rates.
The most famous recent case is that of Alex Jones and his Infowars website, which has a reputation for manufacturing stories to further Jones’s right-wing agenda. The straw that broke the camel’s back? Repeated claims that the Newtown school shooting was faked by gun control advocates. Jones and Infowars have now been banned from Facebook, Twitter, and, as of this week, Roku.
Let’s assume that Jones has not a shred of evidence for his fantastic claim, and that he just made it up in order to bolster his pro-gun position…. The parents of murdered Newtown children have been shocked, disturbed, and re-traumatized by this lie, and this intentional infliction of emotional distress should not be tolerated. Jones, the fabricator, should be in deep legal trouble. He actually is, because he is the subject of a civil suit brought by some of these parents. That’s good, but in my view insufficient. I’ve presented here before the unpopular view that deliberate lies about facts to further political arguments should be a crime, and those who craft them should rot in jail. But punish the actual wrongdoer—not the messenger, as is happening in Germany and being considered elsewhere. And have the government, with all its well-justified protections for the accused, conduct the process. Don’t rely on private parties to do it, with the steady stream of botched jobs and legitimate right-wing beefs that has entailed. The ACLU, which knows something about the value of free speech, is very concerned with the private censorship of Alex Jones, obnoxious as he may be. So is Bill Maher.
Benjamin Franklin confronted somewhat similar problems, on an eighteenth-century scale, as a printer of material some people found offensive. “Being thus continually employ’d in serving all Parties, Printers naturally acquire a vast Unconcernedness as to the right or wrong Opinions contain’d in what they print,” Franklin observed. “They print things full of Spleen and Animosity, with the utmost Calmness and Indifference, and without the least Ill-will to the Persons reflected on. … If all Printers were determin’d not to print any thing till they were sure it would offend no body, there would be very little printed.”
Franklin was responding to criticism that he had printed a piece denigrating the clergy. Indeed, it wasn’t that long ago when criticism of religion generated as much revulsion as criticism of LGBTQ individuals, Muslims, people of color, independent women, etc. does today. Who is to say that day won’t return? If it does, should those of us who want to object to religion’s excesses be subject to the same kind of private censorship that understandably frustrates conservatives today? I would say no. Expression should be regulated, when absolutely necessary, by an accountable, elected government.