by Gerald Dworkin
We (the readers of 3QD; I know there are many people who disagree) can take it as given that Alex Jones is a thoroughly evil person. Someone who spreads false statements that the parents of the children killed in the Sandy Hook shooting staged the whole thing deserves lots of bad things happening to him, e.g. lose all the money he has made from the web in a defamation suit that the parents have filed, have people boycott his dietary supplement hoax.
The question I want to discuss here is whether he should not be allowed to use the various social-media platforms, e.g. Facebook, YouTube, Apple, Spotify, which have recently denied him access. I begin with five problematic arguments for censoring Jones. I then consider some possibly better ones.
1. Facebook removal does not violate the first amendment
The premise is correct . There can be no violation of that amendment by Facebook since the amendment states clearly that “Congress shall make no law…abridging the freedom of speech…” Courts have interpreted this to mean that the Federal Government shall not so so. Further they have interpreted the Due Process clause of the Fourteenth amendment to extend this impermissibility to state governments. This is why the University of California is bound by the First Amendment and Harvard is not.
But the mere fact that banning Jones is consistent with the First Amendment merely shows such a ban is not unconstitutional. It does not advance any positive reason for censorship. It only shows that one argument against censorship fails.
2. Private companies can censor whatever they want
Facebook, etc. are private companies. They can set service agreements as they choose subject to laws which prevent discrimination against certain classes of people, e.g. discrimination because of race, sex, sexual orientation, etc. So they can ban Jones.
This is the libertarian defense of shutting Jones out. If you disapprove don’t use the service. Find one whose terms of service you like. This might be fine for Libertarians. But most of those opposing Jones, whether liberals or conservatives, are not Libertarians. They ought to recognize the Golden Rule for speech–who has the Gold rules. Jones has made a fortune peddling lies and diet pills and can well afford to find alternative outlets. Indeed downloads of his Infowars app have soared. Black Lives Matter, Second Amendment fans, and BDS are not in a similar position.
In any case even if private companies are entitled to set whatever terms of service they like it doesn’t follow that they should. We are entitled to a justification for censoring Jones and not, say, Jordan Peterson. This requires categories which are justifiable for distinguishing the two.
3. Jones’ views are offensive
This is clearly the case. But offense cannot be a legitimate reasons for denying anyone access to a forum. Calling Trump a mean, ignorant, mentally deficient, moron is offensive to many people. Mere offense cannot be a justified reason for preventing people from access to social media. But the “mere” is important. There are lots of other categories, e.g. hateful, vicious, threatening violence, which may be different.
For those who approve of offense as a limitation on free speech what are your views about taking this off Facebook?
4. Jones’ views cause harm to some people
This is not an so much a bad argument as an incomplete one. We are used to the idea that the liberty to swing my arm ends at your nose. With respect to many actions a Millian harm principle is invoked to sanction legal prohibitions. But speech, while plausibly an action, has been regarded as a special kind of action. While some speech, e.g. libelous, defamatory, etc. has been criminalised much harmful speech is rightfully, protected. Vicious reviews (this play runs the gamut of emotions from A to B), calls for boycotts (BDS), exposing the misdeeds of sexual harassers (MeToo) are, and should be protected.
For now, let me just note the following problems for the view. How to define harm? How to determine causation? Does it matter if the view that causes harm is true or false? Does it matter if the harm is foreseen or intended by the speaker?
5. Hate speech
Jones’ views are hate speech. This is becoming the central meme for those who justify banning Jones from social media. It Is distinct from the idea of causing harm since it is not burdened with the issue of how do we determine whether this particular act of speech cause any particular harm. The central difficulty Is how to define the term itself.
We have already criminalized certain kinds of speech, e.g. libel, defamation, certain threats. Do we need the category of hate speech and can we define the term in a way which will prevent it being used to restrict activities that those who advance the definition might want to protect? For example, the New York State Senate recently passed a bill that would prohibit “student organizations that participate in hate speech, including advocating for the boycott, divestment and sanctions of Israel and American allied nations” from obtaining public funds.
Exercise for the reader: Formulate a definition and try it out on Malcolm X, Nation of Islam, BDS, Richard Spencer, Black Lives Matter.
* * *
Let us turn to some better arguments for banning Jones. There may be restrictions on speech that are already in the criminal law to use against allowing speech on social media. Or, just as important, reasons of social policy that, while not rising to the level of justifying legal restrictions, do justify the companies in their action.
The actual violation that the companies point to to justify their actions are their “terms of service” agreements, i.e. what they require one read and agree to in order to gain access. Most of us probably never read such terms of service and agree to them only in the sense that we check the relevant box. But we may assume that people like Jones, who know their views are intensely controversial, do at least read them more carefully than that, although they may agree to them either delusionally, believing they are not going to be in violation, or cynically, assuming they are but not believing they will be enforced against them.
The terms of service are quite extensive but for our purposes the following clarification of the term “hate speech” is useful.
“While there is no universally accepted definition of hate speech, as a platform we define the term to mean direct and serious attacks on any protected category of people based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability or disease.”
First, note that this does not cover the false statements Jones made about Sandy Hook. Neither the parents nor their children are “protected” by the categories listed. Those attacked by Holocaust deniers might be –if it is thought that Jews are the objects of Holocaust deniers. Although it is quite plausible to think that the objects of attack are non-Jews, or the public more generally — who are taken in by historical lies.
In my view Zuckerberg’s defense of allowing Holocaust denial is on the right side of things in spite of the silly assertion he makes about “intent.”
“I find that (Holocaust denial–GD) deeply offensive. But at the end of the day, I don’t believe that our platform should take that down because I think there are things that different people get wrong. I don’t think that they’re intentionally getting it wrong…
If we think allowing Holocaust denial is the correct policy then we must allow statements about certain racial groups being “superior” to others based on IQ scores, or genes, or whatever. We can, I believe, ban racial slurs which cannot be thought as part of intelligent reflection on anything. But in allowing the kinds of claims made by Jensen, Herrnstein, et. al. we have to also concede that it is quite likely that reading such claims may be more hurtful and damaging than having a racial slur aimed at you. So, I think that the “direct and serious attack on relevant protected groups” is in a way too broad. But I cannot suggest a way of re-phrasing it so as to prohibit slurs but allow Jensen.
Facebook has another category of objection however. “Our defense of freedom of expression should never be interpreted as license to bully, harass, abuse or threaten violence. You may not make specific threats of violence or wish for the serious physical harm, death, or disease of an individual or group of people.”
But–breaking news- Jones has issued a set of videos wonderfully illustrating the difficult line between threatening or inciting violence and expressing views which fall short.
Leaving aside the many (literally) incredible statements Jones makes about Mueller in the first video clip, there is the issue of whether Jones is threatening to shoot Mueller and, therefore, falling under the threat of violence clause. The reader should look at the clip and decide for themselves.
My own view is the the insertion of “politically” and the scenario of a shoot-out at high noon, and the pantomime of fingers firing bullets, is enough to shield him from the charge . The only person who is engaging in this behavior is Jones , and a shoot-out requires both parties to agree.
But if you disagree with me we can reflect further by looking at the case law that has grown up around the legal notion of “Incitement to violence.” Virginia vs. Black is a very complicated Supreme Court decision on banning Klan cross burnings. ( Two of the most important cases concerning Black civil rights — this one and Loving v. Virginia (interracial marriage) get to have such wonderful titles. Black in this case was a member of the KKK. ) There were six separate opinions in this cross-burning case which seems to indicate that even the best legal minds find these Issues confusing.
The second of the four videos removed is bizarre–it apparently was filmed independently of Jones—and how it relates to the explicit message of fighting liberalism by using condoms is quite obscure. Is it the kid, or the father, who is being condemned? But to view it as a defense of pushing kids is certainly a stretch. Again, let the viewer make up her mind.
Note: As of this writing I was able to find one place where this video is still online. By the time you read this that may no longer be the case.
Having set out the cases where we might disagree I discover that Jones has just (August 15th) released a video that falls clearly under the Facebook definition of incitement to violence.
This is clearly expression which we have to limit and whose limitation does not dis-serve the Ideal of allowing the fullest possible expression of ideas. Jones can continue to spread his hysterical conspiracy theories, and falsehoods. What he cannot do is call for his followers to pick up their “battle rifles.”
The lesson to draw from all of this is that the reasons one gives to ban speech–where there are good reasons to do so–are complicated, must be drawn with as much clarity as possible, and will inevitably be subject to misuse. We should regard the use of hate speech laws in countries such as Canada, Germany and Iceland as laboratories for studying the consequences of such laws. The study of the interaction of such laws with the culture and political climate at the time of their use is in its infancy. In a time when the press is under harsh attack, and the former head of the CIA has his security clearance removed because he criticizes the President, I am not sanguine about private corporations censoring speech.