Can free speech be protected without helping the haters?

The ADL cheered when the Supreme Court didn’t uphold a Texas law that would stop social-media companies from silencing users. But do worries about anti-Semitism justify political censorship?

Protesting free speech in New York City. Credit: A Katz/Shutterstock.
Protesting free speech in New York City. Credit: A Katz/Shutterstock.
Jonathan S. Tobin
Jonathan S. Tobin is editor-in-chief of JNS (Jewish News Syndicate). Follow him @jonathans_tobin.

Silicon Valley oligarchs, along with their political allies and beneficiaries of their financial contributions in Congress and the Jewish community, breathed a sigh of relief on Tuesday. The U.S. Supreme Court ruled in their favor when it blocked enforcement of a Texas law that would have stopped social-media companies from removing posts and banning users because of the content of their posts. The decision won’t be the final word on the matter, though; what was at stake was an effort by Texas to have the law remain in place while a federal appeals court considers the case.

The ruling, in which the majority didn’t issue a written opinion, was the result of an odd coalition. The majority was made up of the court’s conservatives (Chief Justice John Roberts, and Justices Brett Kavanaugh and Amy Coney Barrett) and two of the liberals (Justices Sonia Sotomayor and Stephen Breyer) while the minority was composed of three other conservatives (Justices Clarence Thomas, Samuel Alito and Neil Gorsuch) and one liberal (Justice Elena Kagan). This unusual split illustrates just how difficult a challenge this issue poses to the law. When the case eventually comes before the high court to be decided on the merits rather than on more technical questions about whether it can remain in place until that happens, the decision may go the other way.

Like the dispute over a similar law passed by Florida that is also being challenged, a fundamental question facing 21st-century life will be at stake in the outcome. Since it’s unlikely that Congress will legislate an answer to the problem, it is the Supreme Court that will have to decide which is more important: the right of free speech in a democracy or the need to prevent the spread of hatred on the Internet.

As far as some of the leading voices of the American Jewish community are concerned, the answer is a slam dunk. Speaking on behalf of most liberals, the Anti-Defamation League believes that worries about the way the Internet and social-media facilitate and strengthen hatemongers, including racists and anti-Semites, means that more of what they euphemistically call “moderation” is necessary.

The ADL has been among the loudest cheerleaders for efforts to increase censorship on Facebook and Twitter. Egged on by people like actor Sacha Baron Cohen, the ADL has helped to pressure the social-media giants to crack down on expressions of hate and partnered with PayPal in an effort to demonetize publications that it labeled, rightly or wrongly, as extremist.

Cohen successfully shamed Mark Zuckerberg into reluctantly embracing censorship by comparing him to a restaurant owner that hosted Nazis when he had the right and the duty to refuse them service. But if the only people that Facebook, Twitter or YouTube booted off its sites were neo-Nazis or members of the Ku Klux Klan, then Texas and Florida would never have passed these laws. Instead, these companies have made no secret of their political inclinations by shutting down reporting of a story that might have hindered the election of President Joe Biden. Since then, they have repeatedly targeted conservatives for “moderation,” which is to say they are engaged in the censorship of views the owners of these companies and their largely woke staffs don’t like.

The most famous of their targets is former President Donald Trump. He was silenced on social media because of his insistence on disputing the integrity of the 2020 presidential election after his defeat and for being blamed for the resulting Jan. 6 riot at the U.S. Capitol, though the same companies were perfectly happy to allow those who had fomented the more deadly and destructive Black Lives Matter riots to remain on their platforms. But he’s far from the only one that has felt the heavy hand of Big Tech censorship. These companies have intermittently silenced a variety of figures on the right for enunciating stands on controversial issues, including shutting down the accounts of the Babylon Bee, a satire site and LibsofTikTok, which ironically publicized the views of left-wing extremists because they think exposing to a broader public will discredit their side on a host of culture-war issues.

To those who decry their censorship, the companies and their liberal defenders respond by citing their property rights as private companies and the constitutional principle that guarantees publishers the right to accept or decline material as they see fit.

Were these sites normal publications, whether online or traditional print, they’d be within their rights to publish what they like as America’s founders intended when they wrote the First Amendment. But they are nothing of the sort.

These Internet giants are not liable, as any other publisher is, for what they post or to be held accountable if they are responsible for spreading libelous material. To the contrary, Section 230 of the federal Communications Decency Act of 1996 holds them exempt from action because Congress deemed any such “interactive computer service” to be the moral equivalent of a bulletin board rather than a newspaper, magazine or broadcast outlet.

Even more important, they are, as Texas Attorney General Ken Paxton has argued, “the 21st-century descendants of telegraph and telephone companies: that is, traditional common carriers.” That means, as is the case with a variety of businesses that fall into that category, they are obligated to take on all customers, except in very limited circumstances.

Speaking for the three conservative dissenters, Justice Alito agreed. He was also on point when he noted that “it is not at all obvious how our existing precedents, which predate the age of the Internet, should apply to large social-media companies.”

The publishers of the past (or the present) do not compare to the reach and the power of these sites. Facebook, Twitter and YouTube aren’t merely venues for expression. In our contemporary world, they are the virtual public square and have more power than governments or the press as we once envisioned it. Even if we were to assume their intentions are apolitical, which they clearly are not, or whether supposedly high-minded groups like the ADL are advising them, they can’t be given the right to effectively determine what kind of speech, whether good or bad, can be heard. That’s something that not even the most powerful media barons of the past could ever dream of doing.

The Texas law only applies to social-media platforms with more than 50 million active monthly users. It also exempts sites whose content centers on news, sports and entertainment not primarily provided by users. It also provides some exceptions to the prohibition on moderation that include sexual exploitation of children, incitement of criminal activity and some threats of violence. If eventually upheld by the courts, the law would therefore uphold the right of free speech in a way that is meaningful in our current environment and without which we would all be at the mercy of a few powerful multi-billionaire Big Tech moguls in order to express our opinions.

This would also mean that a lot of terrible speech would be allowed on social media. That’s not a consideration that can be easily dismissed in an era in which a rising tide of anti-Semitism is spreading across the globe. Still, it should be noted that a great deal of hate, especially from the anti-Semitic far-left or totalitarian states like Iran, is already deemed not to be a problem by these companies.

It’s shocking to think how many who bandy about the word “democracy,” especially groups like the ADL that have abandoned nonpartisanship in favor of open partisanship for the Democratic Party, have no problem with a few people in Silicon Valley having the ability to shut down any speech that they deem harmful or merely inconvenient to the parties or groups they support.

It is not enough to say, as the ADL does, that online extremism is dangerous and therefore must be silenced. In a free country, words or advocacy of even the worst causes is not violence. While many may have cheered Cohen’s point about throwing Nazis out of public establishments, the security of minorities like Jews is better protected by preserving the right of free expression and an open public square than by relying on the likes of the ADL or their Big Tech donors to tell us what we can or cannot say. It can only be hoped that the courts are wise enough to understand this distinction.

Jonathan S. Tobin is editor-in-chief of JNS (Jewish News Syndicate). Follow him on Twitter at: @jonathans_tobin.

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