Limiting Speech in a Free Country

By David K. Shipler

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.

— The First Amendment

The First Amendment restricts what government may do, not what may be done by private entities such as Twitter and Facebook. So the internet platforms that have banned Donald Trump and many of his conspiracy-minded supporters do not run afoul of the Constitution. They are private companies, no more prohibited from silencing unwelcome viewpoints than any printed newspaper would be.

But American society needs to be careful about privately-imposed censorship — for that’s what it is, no matter how justified in the current state of emergency. As seen since 9/11, practices adopted to counter threats can spill beyond the immediate risk, stifle diverse opinions, and outlast the period of danger. It’s a tricky balancing act to preserve freedom of speech and also contain wildfires of lies and verbal extremes that ignite violence.

The real conspiracies — not those fabricated but those organizing armed attacks — need communication to recruit and plan, so disrupting open lines of contact can impede them for a while. Yet in its quest for security against what might become a burgeoning insurgency, the country could harm itself. Extremist movements are already being driven underground to fester out of sight, elusive to law enforcement. If the parameters of acceptable debate are narrowed and marginal ideas are exiled from the public square, the society cannot be self-correcting. That depends on robust discussion across a broad spectrum, facilitated these days on the internet.

The map of free speech in the United States is defined by two overlays: fairly clear legal limits imposed by government on the one hand, and on the other, shifting boundaries drawn informally in the larger culture of peer groups, employers, news organizations, social media, and so on.

On the governmental level, the law’s limits on speech are so minimal, so distant from the places where most people go, that the landscape of freedom is probably the most expansive of any country in the world. It is very hard to break the law by merely speaking, although perhaps President Trump managed when he fired up his supporters before some of them stormed the Capitol.

Many Americans know a version of Oliver Wendell Holmes’s famous prohibition against shouting fire in a theater, but many who quote it omit a key qualifier: the word “falsely.”

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic,” Holmes wrote for a unanimous Supreme Court. “It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”

Trump’s speech seemed to fit those criteria. He falsely claimed that the country was ablaze with election fraud, and falsely led his supporters to believe that the results could be corrected by the Vice President and Congress if only the mob would march on the Capitol. And while subsequent court rulings have tightened the definitions of incitement, requiring the words to be “immediate” and “imminent” to the resulting violence, Trump probably met that test as well. He told the masses that he would go with them to the Capitol — a lie within a lie — and they set out even before his final words. He went back to the White House to watch the assault on television.

Holmes was writing in 1919 to uphold the unjust conviction of Charles Schenck, general secretary of the Socialist Party, who had been imprisoned for mailing leaflets urging that the military draft be resisted and repealed as a despotic method by the rich to force the poor to fight World War I on behalf of Wall Street. “When a nation is at war,” Holmes wrote for the Court, “many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured.”

While Holmes reversed himself in later cases, he had acknowledged a sobering truth: The freedom to speak expands and contracts with the nation’s sense of security — and in addition, history shows, with an input of emotion and bias.

Some speakers have less latitude than others. After the terrorist attacks of Sept. 11, 2001, American Muslims had little safe space for rhetoric. An illustration came five days after planes were flown into the World Trade Center and the Pentagon. A group of young Muslim men gathered at a dinner in Virginia to hear remarks from a native-born American computational biologist and lecturer on Islam named Ali al-Timimi. According to some present, he made three points: that 9/11 augured the imminence of the end of days, that Muslims and their families ought to leave the United States, and that jihad could be waged if his listeners went to fight in Kashmir, Chechnya, or Afghanistan.

Four of the young men present that evening went soon after for weapons training in Pakistan but never joined the Taliban or any other terrorist organization. They returned after several weeks to the United States, where they and seven others were charged under various conspiracy and anti-terrorist laws. The FBI pressured some to turn on Timimi in exchange for avoiding prison, succeeding in getting three of them to testify. Their recollections of Timimi’s evening talk were taken as fact. Although neither he nor the men he spoke to engaged in terrorism, a jury drawn from the Pentagon area in Virginia convicted him of a very indirect crime — not committing violence, not even conspiring to do so, but for inducing the young men to conspire to levy war against the United States. Sentenced to life in prison plus seventy years, Timimi served fifteen until provisionally released last September pending his appeal.

It remains to be seen if Jan. 6, 2021 introduces another era of government restrictions on free speech. That is already happening in the cultural and private landscape, the other overlay on the map. There, the region of speech grows and shrinks even more dramatically with the moment.

In the last decade or so, racist comments online have gotten some people fired from jobs but rarely banned from social media. For years, internet platforms have permitted anti-Muslim posts, websites, and conspiracy theories based on faked scholarship alleging that American Muslims pose an internal threat of terrorism and government takeover through their mosques and community centers in the United States.

During the Obama administration, the major platforms allowed virulent racist images and epithets against President and Michelle Obama, including doctored images picturing them as gorillas and chimpanzees. Local Republican Party officials who posted or retweeted the bigotry were sometimes dismissed, but not always.

When social media companies have denied service, their motives have not always been pure. Bias plays out in various forms. Last June, Facebook abruptly shut down the page of Black Zebra Productions, a Black-run journalism organization, after a video was posted showing Sacramento police using violence against demonstrators. The American Civil Liberties Union of Northern California noted that “years of irreplaceable video and documentary footage” disappeared and declared, “Black users have long complained that Facebook incorrectly flags or censors content that discusses racism and activism, while at the same time failing to remove hate speech posted by white supremacists.” The page was reinstated after a few hours.

Last fall, Facebook repeatedly rejected a promotional video by a music duo, Unsung Lilly, as “sexually explicit,” presumably because the two women, who are married to each other, appear briefly at the beginning with their foreheads touching.

Back in 2007, Naral Pro-Choice America, the abortion rights group, was denied a request by Verizon Wireless to use its sign-up texting program, a system through which people register to get informational texts from politicians and non-profit organizations. Most recently, conservatives have charged that they are being singled out for silencing. If so, it’s a very recent phenomenon.

For most of the Trump administration, the blatant lies of the President and his supporters were left online unchallenged by the internet companies. Only gradually during the last year did Twitter and Facebook begin to flag some of his posts as factually inaccurate, then remove them. His fabrications about a stolen election spread relentlessly for two months after the voting.

While Trump was addicted to Twitter, he has other means. So do QAnon, the Proud Boys, and other right-wing groups who attacked the Capitol. Their widespread expulsion from Facebook and Twitter, and the shutdown of their main alternative, Parler, has driven many of them to encrypted apps such as Signal and the Dubai-based platform Telegram, which have been downloaded tens of millions of times in the last week.

So, every solution creates at least one new problem. Yes, removing them from the most accessible platforms might interfere with their ability to disseminate their messages and attract more adherents. But monitoring encrypted forums is harder for law enforcement. As Sheera Frankel of The New York Times has explained, the FBI and local police often get tipped off on upcoming actions when they see dates mentioned on public sites and can then mine the darker parts of the web. But those regions are fragmented, protected by layers of passwords and gateways, and effective in concealing users’ real identities.

Smothering speech that is considered dangerous does not always work against motivated radicals. Canada, Australia, and Germany outlaw hate speech, but they have plenty of hate. Most European countries prohibit Holocaust denial, the display of Nazi symbols, and other forms of anti-Semitic speech, but they have plenty of anti-Semitism, and right-wing extremists are on the rise throughout the continent. The Soviet Union banned speech containing ethnic hatred and separatism, but there was lots of it in private, and the country broke up into fifteen separate countries along national and ethnic lines.

Free speech works when the public is aware enough to see through absurdity. In that utopia, free speech presents no threat, because citizens don’t fall for radical fabrications and authoritarian demagogues. QAnon’s lunatic notions of Democrats as Satan-worshipping pedophiles get laughed into oblivion. Trump’s deranged insistence that he had won a landslide is ridiculed by the entire nation.

With a critical mass of Americans who understand and embrace their own democratic values and mechanisms, who know the Constitution and the sordid histories of dictatorships elsewhere, the right-wing fantasies get no traction, none at all. But that is not the America we have.

David K. Shipler is a best-selling, Pulitzer Prize-winning author of 7 books and a former foreign correspondent for The New York Times.