Guest opinion: Free speech is bigger than Facebook or Twitter

In 1971, the Washington Post sought to publish the top-secret Pentagon Papers. The Pentagon Papers exposed numerous lies and omissions that the US Government had been perpetrating about the Vietnam War. The Nixon Administration was apoplectic about that prospect, and went to court to prevent it. Among other things, it was illegal expose top secret information under what was called Espionage Act. The Supreme Court decided that prior restraint (which is an abridgment of free speech) was appropriate only for speech/disclosures that would cause “grave and irreparable” harm. The Supreme Court declined to prevent the publication of the Pentagon Papers, and the Post went ahead and published the Papers. The government went on to criminally charge Daniel Ellsberg with leaking the Pentagon Papers.

Facebook and Twitter are believed by many to be natural monopolies. Each reached a certain critical mass in size, such that each had so many users that it effectively made them the only place to go in their respective categories of internet communication. FB is currently facing antitrust litigation on the basis of being an alleged monopoly. In effect, like the power company or the water company, they have become so pervasive that they are essentially public communication utilities. Being banned from them highly impacts one’s free speech.

Disputes continue to rage about what posts social media should allow or disallow. FB and Twitter can read which way the governmental wind is blowing. The two companies know they are highly vulnerable to the threat of greater regulation that (from their point of view) is likely to be highly harmful. Senator Elizabeth Warren and others are pining for more fulsome regulation. Placating the government enters into the decisions the companies make. Under these circumstances, it is a canard to say these are merely private companies making independent decisions. This is government censorship by private company proxy. Comparing the decisions of a newspaper about what is or is not published is not analogous to Facebook and Twitter. FB and Twitter are actually like Speaker’s Corner in London’s Hyde Park or, going back to the pre-internet days, telephone poles or community bulletin boards (made of actual cork), where anyone could staple-on anything. I acknowledge that many want FB and Twitter to have the same responsibilities for content that newspapers do. But that’s not how they’ve been operated to date, or what they are currently legally responsible for.

Trump, in part due to his racist and fascist policies and rhetoric, was the worst president in the history of our country. Trump’s continued insistence on espousing the Big Lie does incalculable damage to our democracy and civil society. But suppressing Trump feeds the paranoid delusions of his followers. To them, it validates their fevered fantasies about evil government and evil progressives. The suppression is a dangerous accelerant to the frighteningly bitter schism between red and blue. Though Trump is highly repulsive, he is also a very influential person in politics and public policy, and a serious candidate for president in 2024. Such a person, no matter how odious, can’t be silenced while adhering to the First Amendment.

In 1977 the Nazi party organized a march through the town of Skokie, IL. Skokie had many Jewish residents, including Holocaust survivors. When Skokie went to court to stop the march, the ACLU assisted the Nazis to allow the march to proceed, on the basis of protecting the First Amendment. The ACLU correctly knew that the true test for defending free speech is in how the most vile, hateful, and controversial speech is treated/allowed. Speech in favor of mom and apple pie does not need protection. It is impossible to overstate the vile, hateful, racist and fascist nature of the Nazi party. It was an emphatic and brilliant demonstration of the vigorousness with which free speech must be defended. In my view, it was one the ACLU’s finest hours, not least because of what must have been the pain the ACLU felt in providing the assistance under those circumstances. I would love to hear an explanation from the ACLU for why, if it could help the Nazis, it has concluded that it should not assist Trump.

An influential minority of progressives have a mistaken belief that large portions of the population are naive or stupid. On the contrary, many of the current Trump supporters will eventually see him as the grifter that he is. But stifling Trump now just enhances his martyr-like status among his base. The country can withstand the onslaught of Trump’s bile. Equally importantly, if and when Trump crosses a line with his posts, he should be sued or criminally charged. As awful as Trump is, he is not worse than the party of Adolf Hitler. Let’s not play the role of the person up on the stool in the middle of the kitchen as the tiny mouse scampers by. Let Trump resume his toxic messages.