legalities

Anti-Free-Speechers Still Aren’t Taking Their Own Arguments Seriously

Photo: Josh Edelson/AFP/Getty Images

Over the last few years, left-of-center thinkers have penned a cavalcade of articles arguing against the traditional liberal view that free speech is an important principle worth defending for its own sake. While such articles vary in the particulars, they tend to argue that the view of free speech for its own sake is outdated, inadequate to the demands of the era, a boon to bigots who use it as a fig leaf for their pernicious online propaganda, or some combination of the three.

As I’ve argued previously, these takes tend to suffer from a certain thinness. Often they swap out the legitimately complicated questions posed by the real world for easier, simpler, and more straightforwardly moral ones. Or they gravely misunderstand the present American legal landscape and the limitations this landscape imposes upon would-be speech regulators. Or they simply don’t bother to address the obvious ways in which nobly intentioned acts of speech regulation can end up backfiring terribly and predictably.

An excellent example of how even very smart thinkers can get lost in the fog shrouding this issue came in Sunday’s New York Times in the form of a column by The New Yorker’s Andrew Marantz headlined “Free Speech Is Killing Us,” adapted from his upcoming book Antisocial: Online Extremists, Techno-Utopians, and the Hijacking of the American Conversation. Marantz is a very talented writer and reporter — I particularly enjoyed his profile of the far-right provocateur Mike Cernovich — but his column is a case study in what happens when one embraces the idea that something must be done to de-liberalize the present American speech landscape without thinking the issue through in a rigorous way.

In his column, Marantz argues, “Noxious speech is causing tangible harm,” a fact that “implies a question so uncomfortable that many of us go to great lengths to avoid asking it. Namely, what should we — the government, private companies or individual citizens — be doing about it?” After rejecting one answer, nothing, he argues, “Using ‘free speech’ as a cop-out is … intellectually dishonest [and] morally bankrupt. For one thing, the First Amendment doesn’t apply to private companies. Even the most creative reader of the Constitution will not find a provision guaranteeing Richard Spencer a Twitter account.” Continuing: “I am not calling for repealing the First Amendment, or even for banning speech I find offensive on private platforms,” he writes. “What I’m arguing against is paralysis. We can protect unpopular speech from government interference while also admitting that unchecked speech can expose us to real risks. And we can take steps to mitigate those risks.”

Before wading into this column’s specific arguments, it’s worth briefly noting that its entire framing is questionable at best. While the rise of online radicalization and the recent surge in far-right populism on multiple continents certainly pose dire challenges for liberal society that need to be taken seriously, there’s simply no reasonable way, in light of the data we have, to make the argument that we live in particularly violent times, or that anything but a small chunk of American violence can be credibly connected to the sorts of online speech Marantz is concerned about rather than, well, the million other reasons Americans kill one another. (It is always worth remembering that mass shootings, despite the massive amount of media coverage they understandably garner, constitute a tiny speck in the broader galaxy of American gun homicides and suicides.) As Robby Soave put it, “If the argument is that free speech protections must be curbed in order to stave off an epidemic of violence, then the argument should be heartily rejected.”

Setting that aside, there are many glaring, telling issues with Marantz’s column. One is that, in service of his argument that we need to do something about free speech, he repeatedly cites examples that have very little to do with free speech. “Racists should have rights,” he approvingly quotes John A. Powell, a former legal director of the ACLU who is a law professor at UC Berkeley and who once represented the Ku Klux Klan, as saying. “I also know, being black and having black relatives, what it means to have a cross burned on your lawn. It makes no sense for the law to be concerned about one and ignore the other.” But the law doesn’t ignore burning a cross on someone’s lawn, which is very much illegal, and no one anywhere is claiming this is protected speech.

Later on, Marantz notes, as one possible remedy powerful actors could pursue: “Tomorrow, by fiat, Mark Zuckerberg could make Facebook slightly less profitable and enormously less immoral: He could hire thousands more content moderators and pay them fairly.” Again, where are the people claiming that, because of free-speech concerns, beheading videos and the other content such moderators are paid to remove should stay online? This is a matter of Facebook’s priorities and labor policies (content moderators can be traumatized by the horrific stuff they see) — not anyone’s idea of a serious free-speech argument.

The broader problem here is that while Marantz argues that the need to do something is urgent, and nods to the fact that this could entail “trade-offs,” he fails to engage with just how obviously dissatisfying, if not deleterious, those trade-offs could be. This is characteristic of the broader subgenre: The reader is buffeted with examples of the harms speech can inflict, told that we need to prevent these harms by targeting the speech in question, but rarely presented with the full picture of what that would look like in practice — likely because any such “solution” would undoubtedly birth new problems, some of them rather thorny.

For example, Marantz asks, “But what about speech that’s designed to drive a woman out of her workplace or to bully a teenager into suicide or to drive a democracy toward totalitarianism?” Well, okay: But death threats and certain other forms of scary and harassing speech are already illegal, or can be rendered illegal with restraining orders, so clearly Marantz is suggesting we examine forms of speech a notch or two below that. So, an example: If you’re a teenager (or an adult!), it can be very traumatizing to have 50 people tweet or Facebook message “Fuck you” to you, or call you, say, “slut.” Should that be illegal, too? What should the punishment be? Do we want a world in which, during a teenage bullying incident, a bunch of teenagers have to go to court because they called their classmate names?

And who is to say which speech does or doesn’t “drive a democracy toward totalitarianism”? I find their opinions asinine, but tens of millions of my fellow Americans really did earnestly believe Barack Obama was driving America toward totalitarianism. Once you open the door to restricting speech on such subjective grounds, how do you respond coherently to the demands of the nation’s tricorn-hatted weirdos? Or, what happens when the precedent for limiting speech has been set and a politician positively inclined toward tricorn-hatted weirdos takes power? These sorts of takes tend to ignore the fact that Americans disagree wildly on which sorts of speech are most harmful; there seems to be an implicit assumption that progressives will always make the rules, which is certainly a questionable premise in light of, well, everything.

But perhaps the best example of what happens when you approach this subject from a crisis mentality, without fully grappling with these trade-offs, comes when Marantz writes, “If Congress wanted to get really ambitious, it could fund a rival to compete with Facebook or Google, the way the Postal Service competes with FedEx and U.P.S.” But if the government did establish such a platform, it would likely have very little ability to regulate its content — unlike Facebook and Twitter, ShareSpace.gov (or whatever) would have to abide by the First Amendment, similar to how public colleges have far less ability to regulate students’ speech than private ones. So Marantz is suggesting the government set up a big, powerful social network — it would have to be big and powerful for it to be a true competitor to the giants that already exist — that would immediately provide a safe haven for actual Nazis who really could sue the government for being denied access to it. (Plus, if for some reason such a site didn’t have to abide by the First Amendment, the alternative is it would be controlled by Congress. Imagine what the years between Trump’s inauguration and the Democratic take-back of the House back would have looked like in a world in which the influential, conversation-driving ShareSpace.gov — equally capable of spewing rumor and suppressing critique — answered, at the end of the day, to Republican lawmakers.)

That’s what I mean about the importance of thinking through these questions clearly and attending to obvious follow-ups rather than sweeping them aside. No, a government-funded Facebook competitor is not going to spring up tomorrow, and no, the First Amendment and the thick forest of jurisprudence that has sprung up around it isn’t going anywhere. But it’s easy to imagine situations in which, fooling ourselves into believing the present moment to be more terrifying than it really is, we give in to some foolish anti-free-speech impulses that only make things worse in the long run.