So one of the arguments that people keep making in regards to racist language – whether it be the “thoughtless prankster” PewDiePie, the blatantly neo-Nazi Richard Spencer, or the clearly white supremacist Milo Yiannopoulos – is that everyone should have access to the Freedom of Speech. This divorces a lot of what’s happening in these events and the context surrounding them with what Freedom of Speech actually is and how it functions.
Note: I said I was making a multi-part post, and this is the first of the set. I may make reference to the consequences of free speech, but I’m not discussing it here directly. Yet. Also, I’m not a lawyer, but I have at least some understanding of the difference between governments and corporations.
In all three cases I’ve mentioned, we’re dealing either with people who live in or work with companies in the United States. As such, that’s the perspective I’m going to take. This right has been written into the First Amendment of our Constitution and adopted in 1791:
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 key word here is Congress, which implies that iall public spaces shall allow for freedom of speech. For reference, ‘public’ in this instance is referring to something that relates to government; it’s referring to spaces that are maintained (usually) by the government and relate to or affect people of the nation.
Meanwhile, if you search for “pewdiepie freedom of speech” on Twitter, you get a whole slew of people who fail to understand this basic concept:
The point in highlighting this is that businesses are not the government. This means that any time someone is crying about Milo losing his freedom of speech because Twitter banned him, they’re wrong. If people are mourning PewDiePie’s loss of a platform because Disney’s Maker Studios cut ties with him, it makes no sense. Their right to freedom of speech is not guaranteed in these instances. Disney can silence and remove people from their platform just as easily as Google, Twitter, Facebook, and any other company can.
Disney – unless there’s been a significant change in the way that the United States’ government works, which is probably not beyond the realm of possibility considering what’s been happening in the past 24 hours with Michael Flynn – is not the government. They are a private business; the same applies to Google, who owns YouTube. The right that we’re guaranteed in the First Amendment was meant to keep citizens safe from the government; it wasn’t written to tell businesses that they were obligated to host people on their platform so that they could make offensive “ironic” jokes or actually spew hatred.
While we’re at it, let’s look at a brief history of American censorship by the government, since we’re probably moments away from the Sedition Act of 2017. (I honestly wouldn’t put it past President Agent Orange, his administration and cabinet, and the Republicans to make it happen.)
In the early stages of the United States but after President Washington left office, the Federalist Party pushed three harmful acts that were collectively known as the Alien and Sedition Acts. This consisted of the Alien Friendlies Act of 1798, the Alien Enemy Act of 1798, and the Sedition Act of 1798.
In effect, what the Sedition Act did was make it a crime to publish anything against the US government and Congress that was considered to be “false, scandalous, or malicious” and had the “intent to defame” them or “bring them into contempt or disrepute.” The original goal, or so John Adams claimed, was that they were enacted to decrease the amount of libel in the press; during this time, more and more partisan papers were coming into existence, which meant that there was a lot more of the partisan fighting taking place than had previously existed. Or, at least, more fighting that had existed in print than previously seen. (Adams was also well-known for having an ego but also being incredibly fragile to any criticism or slight. I know, it’s really difficult to imagine that as a combination of personality traits.)
Fast forward to 1918 and we find that Wilson’s administration decided to create and enact yet another Sedition Act, which was developed as an extension to the Espionage Act of 1917. Again, it makes it illegal for people to say anything that could be perceived as showing disloyalty or negativity towards the government; it was meant to get rid of the dissent that was voiced by groups like the socialists, anti-war activists, and pacifists. In notable examples, it silenced (or, at least, attempted to silence) people like Eugene V. Debs (socialist party member and union leader), Mollie Steimer (a Russian immigrant, anti-war activist, and anarchist), Marie Equi (a lesbian who aligned herself with both the anarchists and the radical labour movement), and William Edenborn (a German businessman who was a naturalised citizen who was also 70-years old at the time of his arrest).
Obviously, both of these Sedition Acts either were allowed to expire or were repealed. Thomas Jefferson ran on a platform in the election of 1800 that denounced the Alien and Sedition Acts and allowed both the Sedition Act and the Alien Friendlies Act to expire (the Alien Enemy Act still remains today but has been recodified), and many historians credit theses events with providing a helping hand in the rise of the Democratic-Republican Party and the fall of the Federalist Party. Wilson’s Sedition Act was repealed in 1920. which happened some time after Supreme Court Justice Oliver Wendell Holmes wrote a dissenting opinion in Abrams v United States (1919) that expressed his views on the “marketplace of ideas.”
But then in 1940, the United States Congress enacted the Alien Registration Act, which is also known as the Smith Act. This law targeted non-citizen adults who were alleged to be communists, fascists, and anarchists. Because of a fear of the fifth columns that might betray the United States’ government from within, they decided to create this law to “protect” themselves from unknown radical elements that may have immigrated to the US. However, it included the following:
… with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or … organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof.
Effectively, this entire law enabled the US to target the speech of non-citizens and determine whether or not it “advocated the overthrow or destruction of the US government.” Interestingly, despite its name, American citizens were tried under this law. Many of the people who were targeted by this were Communist leaders who were largely pro-union and workers’ rights – including Elizabeth Gurley Flynn, a founding member of the ACLU who was expelled from the organisation because she was a Communist, and Claudia Jones, who was a Black activist and journalist that immigrated to the US from Trinidad as a child – and some (not nearly as many) were militant racists and actual fascists.
So clearly, the United States a bastion of free speech and the ability to say whatever we want and whenever we want, right?
Well, not quite. There are far more events in history that I haven’t even remotely had a chance to look at. Here are more examples:
- Prior to and during the American Civil War, the US Postmaster General openly refused to allow any mail that carried pamphlets about abolition.
- The First Amendment didn’t apply to states and municipalities until the beginning of the 20th century (1900s), allowing many places and institutions to go ahead and censor things they didn’t want.
- Prior restraint wasn’t even considered unconstitutional until the 1930s.
- Let’s not forget the Office of Censorship was an actual thing during WWII.
- Remember the Pentagon Papers that a lot of people like to cite for helping to end the US involvement in the Vietnam War (1955-1975)? Do you remember what happened to Daniel Ellsberg? He was charged with conspiracy and espionage, among other things before the charges were dropped (because Nixon’s White House were performing unlawful actions to attempt to discredit him). They weren’t declassified until 2011, either.
- The entire premise of McCarthyism. Have fun with that. You could literally take an entire university course on the subject and not finish.
- How about that good ol’ Protect America Act (2007), which actually amended FISA (Nixon-era legislation)? Despite my distaste with some of their other actions (shown elsewhere in this post), the ACLU provides a pretty good analysis of it.
And those are all the times that Congress has enacted laws that directly went against the First Amendment or where our state and local governments didn’t have to guarantee those rights to us and it only completely applied at the federal level. We’re still living with many of those and others that I haven’t even listed.
But honestly, we have a whole list of restrictions and exceptions on our ‘free speech’ because the judiciary has tried cases where it found that things like hate speech are not protected, especially when it urges people to act out. I mean, if we pick out some of the people discussed, much of what Dick and Milo say falls under both incitement and ‘fighting words and offensive speech’. Even if Twitter were a public (read: government) institution, they would still have every right to ban them because what they’re saying is meant to cause harm and incite some form of violence. It’s impossible to support them (and I’m still massively disappointed in the ACLU supporting Lee Rowland as she continues to add to their awful history of supporting hate speech and imagery as she supports Milo in their name).
Using Milo as an example, he outed a trans student at the University of Wisconsin-Milwaukee. His “free speech” was not impugned, but he decided to cross over into harassment. This led to the student, Adelaide Kramer, receiving a deluge of hateful messages, which wouldn’t have happened had Milo said nothing. And the administrators, who were in the audience, are just as guilty of allowing it to continue; they could have stopped it the moment he singled her out but chose not to. The protests at UCB erupted only because the university refused to acknowledge that Milo wanted to out undocumented students. In both cases, the ‘talk’ is inciting violence; these people are left feeling unsafe, especially in a world that is already dangerous for them.
We recently watched a very high profile example of someone losing her right to free speech take place on the Senate floor, especially as she was reading the letter of a Black woman. Elizabeth Warren was silenced as she read Coretta Scott King’s 1986 letter addressing the judicial nomination of Jeff Sessions at the time. Let that sink in for a moment. One of the few women in the Senate took it upon herself to give a voice to a Black civil rights activist (leader) during Black History Month about a person who we know has a negative record with Civil Rights because it is so incredibly well-documented. I saw so few of the same people decrying this event in the way that I see them supporting people like Milo. And when they did talk about this, they focused entirely on Warren being silenced; they neglect the fact that she’d entered other evidence against Sessions from the same time and was allowed to keep talking. It was only once she started reading King’s letter and describing his history of racist actions that she was silenced for “impugning a Senate member.”
But instead of actually acknowledging the harm that these men and others like them are doing, we’d rather clutch pearls about their “loss” of free speech on platforms that don’t legally have to allow it (and, in many cases, could legally disallow it on the basis of safety for others). Yet, I don’t see the same support for people in Black Lives Matter; I don’t see the same support for people protesting police brutality and violence. I don’t see the same support for Muslim people of all backgrounds.
We, and I’m looking directly at white liberals and progressives, are too quick to support the Freedom of Speech when people who’ve abused that right don’t deserve it. Simultaneously, we don’t support the people who need it, and we’re ridiculously silent when it comes to amplifying their voices. It’s absolutely infuriating.