Ban Trump, Twitter, and Free Speech

Peter Van Buren 

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In the through-the-mirror world we now live in, people who once unambiguously supported free speech now are finding plenty of things they want censored.

Chief among those opposing ideas they want silenced are Donald Trump’s. His remarks – from the silly, labeled unpresidential, to the more extreme labeled racist/sexist/misogynist/hateful – have attracted a surprising group of otherwise intelligent people demanding he be shut up.

Salon to Les Barricades!

An article on Salon made the case, specifically demanding Twitter ban Trump. Here’s one representative paragraph:

Republicans may not be willing to hold him [Trump] accountable for his dreadful behavior, but the rest of us don’t have to fall in line. Trump has repeatedly signaled his enthusiasm for dictators, which gives us serious reason to fear he may be eyeballing such powers for himself. Banning his Twitter account would be an important act of resistance.

(Of course American presidents have supported a long line dictators – pick your faves, from Stalin in WWII to Somoza to the Assads to Saddam – without themselves becoming dictators, but no matter, we’re beyond history here.)

But Twitter Has Terms of Service!

Twitter, Facebook, etc., are private businesses and thus not subject to the First Amendment (which only restricts the government from crushing speech) and can make any usage rules they like. But in reality social media outlets have in our age become the public squares of the day, and must be seen and treated as such. For example, when they actually had the guts, good newspapers would go out of their way to print opposing viewpoints, recognizing their status as a public forum.

So yes, yes, Twitter can ban redheaded users (sorry, gingers!) if they want to, but it would be detrimental to our broader national commitment to hearing each other out, including hearing from people we don’t agree with. No,ESPECIALLY hearing from people we don’t agree with. Of course there are also the problems that come up once you start banning people, given how opinions of what should be “allowed” can change as quickly as overnight election evening.

So the fact that an entity can ban speech doesn’t mean it should.

In a broader context, it is also always helpful to remember there are no laws against “hate speech” that prevent people from making rough political statements, or even stupid ones. 

There are laws against inciting violence “Kill all the redheads” but not against saying they suck or are monkeys.

“You Can’t Yell Fire in a Crowded Theater”

That paraphrase of a paragraph from a 1919 U.S. Supreme Court case, Schenck v. United States, 249 US 47 (1919), written by Justice Oliver Wendell Holmes, is often cited as justification for limiting free speech. Here’s what Holmes wrote:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. 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.

The statement says the First Amendment doesn’t protect false speech that is likely to cause immediate harm to others, three conditions. The speech must be demonstrably false, and it must be likely to cause real harm (not just offense or hurt feelings, a “clear and present danger”), and do so immediately.

The interpretation of the First Amendment has been understood and adjudicated to impose a pretty high barrier to restrictions on what can be blocked or banned, and over the years has allowed flags to be burned, the KKK and Nazis to march, artists to make sculptures from their own body waste, and all sorts of political statements, at least a handful of which you would strongly disagree with and be deeply offended by.

And so expression whose ban has been upheld over the long run has been narrow, things the vast majority society agrees are truly dangerous, such as child pornography.

That’s the whole point – with as few limitation as necessary, protect expression people may or may not want to hear. The First Amendment is not there to protect Dancing with the Stars (though it does) but to protect the hard stuff, the hard calls.

Schenck is Actually Evil

And yes, Schenck itself was a crappy case that sought to use the Espionage Actagainst a Socialist pamphleteer, to stop free speech, not protect it, and the case was overturned. In fact, Holmes’ statement was a dictum that the First Amendment is not absolute, that restriction is lawful, along with the developing idea that restriction on speech should be narrow and limited.

It was the later case of Brandenburg v. Ohio that refined the modern standard for restricting speech to that “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” But we talk about Holmes’ “fire in a crowded theatre” line as a kind of shorthand for all that.

Let Him Speak – Loudly

Justice Holmes, perhaps as an act of contrition, later wrote in another landmark case:

The ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

So following the broad values enshrined in the First Amendment’s guarantee of free speech, even though it can, Twitter should not ban Trump. Let him tweet, hell, give him 20 extra characters. And let us know, judge, agree, oppose, and argue about what he says.

PERSONAL BONUS: Writing in a mainstream publication that the president shouldn’t be allowed on Twitter? Jesus Christ, pull your shit together and get a freaking grip on yourselves. If you can’t do that, go hide under your bed and hug your stuffed animal Bobo. You want to worry about authoritarianism? It always includes shutting up people you don’t want to listen to.

Peter Van Buren blew the whistle on State Department waste and mismanagement during Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. His latest book is Ghosts of Tom Joad: A Story of the #99 Percent. Reprinted from the his blog with permission.