Free speech doesn't mean speech free from all consequences, despite what some conservatives argue

The "alt-right" claims that they are martyrs and dissidents in need of more government protection than anyone else feels particularly absurd in 2019.
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sodapix / Getty Images/F1online
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By Scott Lemieux

On Saturday, mere days after President Donald Trump, surrounded by military vehicles, held a poorly disguised political rally on the steps of the Lincoln Memorial during the nation’s July 4th celebrations, a variety of "alt-right" and alt-light organizations are holding a “rally for free speech” in Washington, D.C.

As you might suspect, this is actually an attempt by what passes for luminaries among thirsty social media figures on the fringe right to get some media attention and attract some fringe left protesters in order to make sure that media attention is more sympathetic than usual. An earlier May rally in San Francisco produced negligible results on both fronts; last week’s contretemps in Portland, Oregon, were moderately more successful, driven by the alleged attack on conservative Quillette writer and provocateur Andy Ngo.

This week, then, white nationalist trolls and quasi-celebrities such as Proud Boy founder Gavin McInnes, former Pizzagate conspiracy theorist Jack Posobiec, gadfly and Twitter headquarters self-handcuffer Laura Loomer, dirty trickster Roger Stone (currently under indictment courtesy of the Mueller investigation) and the largely-forgotten-yet-apparently-not-gone Milo Yiannopoulos are hoping to capitalize on Trump’s 4th of July “Trumpstravaganza.”

This may be enough to get their rally some desperately desired attention. But “free speech” has nothing to do with it.

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According to the rally’s website — under the all-caps header “THE FIRST AMENDMENT IS UNDER ATTACK!” — readers are told that “Our rights guaranteed under the United States constitution are being systematically violated” so they must “Join the rally to demand unbiased social media, and an end to censorship.” The site also asserts that the speakers include “well-known public figures who have been silenced by Big Tech.”

Alas, neither the First Amendment nor the term “free speech” mean what the organizers of this white whine festival seem to think they mean.

The First Amendment theory being promulgated here seems to derive from the noted constitutional scholar Sarah Palin, who seems to have been largely left behind from this rolling grift despite her important role in Trumpifying the Republican Party. In 2008, the Republican vice presidential candidate asserted that if reporters continued to criticize her “then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.”

In a variant of Palin’s theory that the First Amendment entails the right not to be criticized, the “Rally For Free Speech” seems premised on the idea that the First Amendment guarantees you the right to say whatever you want on any platform of your choice, whether or not the platform agrees to host those sayings. The lifetime bans given by Twitter to figures such as Loomer and Yiannopoulos loom large in these arguments.

To deal with the easiest question first: None of these people have had their First Amendment rights violated by being banned by social media platforms. The First Amendment constrains only the government, not corporations or private individuals. By definition, “big tech” cannot violate the First Amendment. Only government censorship can violate the constitution, and none of the would-be martyrs are even claiming to be victims of censorship by the state.

Not only is the government not suppressing their speech just because Twitter is preventing them from using its platform, they also have access to a major public space at the nation’s capital where they can publicly claim that their speech is being suppressed to their heart’s content.

To be more generous than the people making this argument deserve, however, it is true there are principles of “free speech” that go beyond the First Amendment. If you’re an ordinary worker and your boss fires you for seeing a bumper sticker for a candidate he doesn’t like on your car, your ability to speak your mind has been chilled — although, unless you work for the government, your First Amendment rights have not been violated. If a ubiquitous social media site such as Facebook or Twitter were to ban, say, all registered Republicans (though the headliners of the rally are hardly representative of all Republicans) or all people with blonde hair from their sites, this would raise troubling free speech concerns (although they would be perfectly within their legal rights under current law).

But it should also be obvious that the idea that social media sites are required to host literally anything or anybody is absurd — and nobody really believes that they are. Virtually nobody would suggest that Facebook or YouTube acted wrongly or threatened free speech by taking down footage of the New Zealand mosque shootings, for example. Facebook bans nude images — even though mere nudity is never considered obscene under the First Amendment — without generating campaigns suggesting that the practice bans free speech (though the policies often result in protests). Platforms make choices about what content they’d like to host and what content they won’t allow.

Free speech also doesn’t mean you have unfettered access to the particular forum of your choice. Liberty University doesn’t violate my right to free speech if it refuses to invite me to give a speech urging Roe v. Wade to be upheld. Similarly, social media platforms are allowed to decide that their site’s standards do not permit the dissemination of hate speech. Laura Loomer is free in the United States to speak as much anti-Muslim bigotry as she pleases, but when this bigotry violated the terms of Twitter’s site, it was permitted to deny her access, and it did not violate her free speech rights when it does so. If anything, social media sites should be more aggressive, not less, in refusing to disseminate hate speech.

And there is something particularly ridiculous about the "alt-right" claiming to be martyrs and dissidents in 2019 in need of more government protection than anyone else. Trump is, after all, the president. A Border Patrol, some of whose agents fill up a secret Facebook group with bigoted comments about Latinos, has been unleashed on a large population of Latino asylum-seekers. The idea that the United States doesn’t have enough hate in its discourse, or that white nationalists’ arguments can’t get a hearing, couldn’t be more wrong.