Because I teach courses in technology that focus on its ethical and legal implications, while I watch with awe my fellow faculty deliver their blockchain and encryption lessons, I get the pleasure of engaging students, usually graduate-level, typically not American, with our fundamental value known as free speech.
“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.”
Of all 27 Amendments to the U.S. Constitution, this is A-Numero-Uno, a scantly Latin phrase that seems fitting nonetheless. “Free exercise” and unabridged are some of the words of those 45 codified that amass to cover religion, expression, the press, and assembly. Forty-five words that mandate, by way of the very first change to our Constitution, four pretty massive social systems, and “free exercise” and unabridged are three of the 45 and expressly target speech, or “expression” as I just morphed it above. Founder James Madison selected those three words to call attention to the ways that speech might be limited without the Bill of Rights’ intervention and its terse treatment of our right of free speech. It shan’t be abridged and it shall be freely exercised.
One very basic limitation to the First Amendment’s plain language, and one that foreign students need to repeatedly hear to fully understand the American legal system, is that the Constitution governs the government. In other words, the general rule is that a private entity may legally abridge speech, or make it less than freely exercised. However, when the government—the cops, the lawmakers, the courts—begins heading down the curtailing cul-de-sac, the First Amendment may protect speech and expression. It’s totally fair game for a dyed-in-the-wool Yankees pub to kick you out for donning your BoSox cap and bellying up. When a court tries to oust you for wearing a jacket with “Forget You” (albeit with a nastier replacement for “Forget”), now we’ve got a First Amendment case, such as Cohen v. California, a Supreme Court case from 1971.
The beautiful thing about the free speech debate, which will never end I predict, is that there will forever be tests to it. And, even if the limitation of speech is in fact levied by a private entity, it still belongs in the discussion. That is an opinion I’d admit. Let us contemplate the banning of speech.
For around five or ten years I have been tickled by the creator of what’s known as InfoWars. I was introduced to Alex Jones’s writings and commentary by virtue of lampoon. He was just outrageous enough to get exactly what he wanted, attention. However, the attention shown on him from my experience was more point-and-giggle than pensive, engaged nodding. Alex Jones and his InfoWars brand, in a nutshell, espouses many conspiracy theories, one of the most recent and inciting ones being that the Sandy Hook murder rampage was “fake” and “manufactured” by a false flag operation of the U.S. Government. Add to that the 9/11 conspiracies, the position that Chobani yogurt brought tuberculosis to Idaho, and that the trails we all see in the wake of an aircraft are actually government created “chemtrails” able to modify the weather, and you can start to see how nutty and entertaining the guy can be.
Earlier in May, Facebook banned Alex Jones alongside Louis Farrakhan and other controversial speakers. Jones lost his connections to LinkedIn, Twitter, PayPal (he hawks survival kits and powdered crystal injections), and Pinterest also cut him off. None of them are governmental actors. Nevertheless, and I share this with you as an attorney at law—“At what else?” I often ask myself silently when I hear the phrase—I could not not think of the First Amendment when I heard this. Facebook claims that Jones’s speech is dangerous, or similar, and that it’s their responsibility to rid its platform of the danger. Oh, Thank You Mark, for sparing me the intellectual hurdles to make up my mind about whether I need to subscribe to the InfoWars lunacy. I was just about to order a twelve-pack of B12 from its store since Jones promised me that my $250 is needed in order to make my DNA.
What I do know is that most of us can tell shinola from other stuff. What I don’t know is how many other millions of Facebook accounts are spewing equally useless, silly, untruthful, comedic, and parodic information. Or, how this one guy gets nixed while those other millions get to prattle on.
My sense of the power of Facebook as a channel of speech and expression is that it’s quasi-governmental in its effect, though clearly not in its authority. Therefore, these bannings, whimsical as they may seem or be, might deserve a different review than the Yankees-Red Sox fandom is subject to at a local tavern. Different, too, from whether a courthouse allows certain text to be present in its hallowed halls, sure. Also, this has very little to do with Alex Jones lest you think I’ve been planted in a not-so-subtle support role as a fan or follower. As I said, he tickles me, at best, and life would trod on whether he’s still a thing or not in my world.
It just seems like there may be danger afoot from the historical perspectives of Madison and other Founders when one of the most powerful, active, and utilized communications channels can just wake up, click a button, and zap an American voice.
Ed is a professor of cybersecurity, an attorney, and a trained ethicist. Reach him at firstname.lastname@example.org.