Saturday, May 4, 2019

Defending Louis Farrakhan. Because All Speech Matters

It has come to this.

Louis Farrakhan is a vile racist, an anti-Semitic purveyor of some of the most hateful rhetoric around. There is no defense for any of the evil words that regularly come out of his mouth.

Yet he is also a victim of Big Tech censorship, when on 2 May, 2019, he, along with conservative commentators Alex Jones, Paul Joseph Watson, Laura Loomer, and Milo Yiannopoulos, was banned from Facebook.

Facebook claimed these people were banned for repeated violations of its policies against "dangerous individuals and organizations." Of the people banned, the strongest case can be made against Louis Farrakhan as being "dangerous."  Of the people banned, Farrakhan is the one who arguably has created dangerous situations and called for violence against others--in a 2015 speech at Mt Zion Baptist Church in Miami, Farrakhan uttered the following:
“The Koran teaches persecution is worse than slaughter. Then it says, retaliation is prescribed in matters of the slain. Retaliation is a prescription from God to calm the breaths of those whose children have been slain,” Farrakhan said.

“So if the federal government will not intercede in our affairs, then we must rise up and kill those who kill us. Stalk them and kill them and let them feel the pain of death that we are feeling,” he added.
These are not defensible words. These are detestable words. Indeed, many at the time marveled that Farrakhan was not arrested for inciting violence against whites, and in particular white police officers. Yet he was not, and no violence attended upon his speech. 

That was a detestable speech. Yet, no matter how detestable it was, it was and is speech. It was and is fully deserving of the protections afforded by the First Amendment, wherein laws regulating speech are presumably forever banned.  Certainly, a superficial reading of the text of the Amendment would lead to that presumption (emphasis added):
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.
These words are categorical, and need no interpretation.  Any law which curtails a person's right to be heard is forbidden under the Constitution.

Why am I composing a defense of Louis Farrakhan and not Paul Joseph Watson or Laura Loomer? The reason is simple: I generally agree with what Paul Joseph Watson and Laura Loomer have to say. Defending their rights of free speech is easy. 

Yet it is not just the agreeable speech that needs protection, but the disagreeable as well.  It is not just the popular idea that we have the First Amendment, but for the unpopular idea as well.  No matter how unpopular Farrakhan' ideas might be, no matter how disagreeable his words, he retains the right to speak his mind freely.  In light of the simultaneous banning of Paul Joseph Watson, Laura Loomer, and Louis Farrakhan, I rise first in defense of Louis Farrakhan, not because I agree with his words or support his ideas, but because I despise his words and condemn his ideas; I rise first in defense of Louis Farrakhan because, for me, his is the offensive speech wherein the true purpose of the First Amendment is realized. With full appreciation of the irony in such defense, Farrakhan gets top billing among these latest victims of censorship.

Contrary to what many conservatives and libertarians might say, Facebook's banning of these individuals is not merely a private company exercising their rights over their private property.  Law is very much at play here.  Section 230 of the Communications Decency Act (47 USC 230) shields Facebook from legal consequence for these actions--yet the First Amendment, which is superior law, precludes the possibility of Congress delivering such protections. Without the protection of Section 230, Facebook would presumably be unwilling to contend with the legal exposures that would arise from banning these (or any) individuals. Thus Section 230 is, to borrow from John Marshall's historic Marbury decision, repugnant to the Constitution and therefore void.

Moreover, Judge Naomie Reice Buchwald just last year ruled (17 Civ. 5205 (NBR), 302 F.Supp.3d 541 (2018)), with regard to President Donald Trump's Twitter account, that Twitter itself was a public forum, and that therefore the President's decision to block certain users was an infringement upon those users' First Amendment rights:
...we conclude that the blocking of the individual plaintiffs as a result of the political views they have expressed is impermissible under the First Amendment. While we must recognize, and are sensitive to, the President's personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him.
Judge Buchwald goes on to articulate the relevant legal standard, "... the First Amendment recognizes, and protects against, even de minimis harms". There is no "minor" infringing of one's right to free speech.  All Speech Matters.

In Packingham v North Carolina (582 U.S. ___ (2017)), the Supreme Court very explicitly extends the public forum view of Twitter to the whole of "cyberspace" generally, and to Facebook specifically. If it is an infringement upon a person's First Amendment rights for the President to block him or her from viewing the Presidential Twitter postings, it is equally an infringement for Mark Zuckerberg, et al, to impose a similar blockade by denying individuals access to their platform.

The legal and technological reality of the 21st century is that social media platforms are the public square of the 21st century.  Banning social media users on the basis of their ideas is no less a violation of civil liberties than banning black people from hotels, restaurants, and public bathrooms was prior to the Civil Rights Act of 1964. As Will Chamberlain, writing in Human Events, eloquently states, "We, as a society, do not have to allow private companies to violate Americans’ civil rights."

Yet that is exactly what Mark Zuckerberg has done. Acting unilaterally while shielded from consequence, Mark Zuckerberg has arrogated to himself the role of arbiter of public thought.  He will decide what opinions, what political perspectives, what ideologies are suitable for the public domain and which ones are dangerous.  Fox News commentator Tucker Carlson frames Facebook's execrable decision perfectly:
Alex Jones’s company, Infowars, was banned as well, and described as a “dangerous organization.” How dangerous is Infowars? So dangerous that you can be banned from Facebook just for sharing its content, unless you also denounce it. Think about that for a moment. Mark Zuckerberg isn't just censoring opinions. He is prescribing which political opinions you're allowed to hold, which conversations Americans can have about their country. Keep in mind, nobody voted for Mark Zuckerberg. 
How dangerous is Louis Farrakhan? There were no reports of violence against white police officers in response to his 2015 speech. As reprehensible as his words are, and as vile as his rhetoric has been since, no one has died from his words. No riots have ensued. His rhetoric has not, thus far, been found to have met the "Brandenburg test" for speech which incites violence  It is accurate and appropriate to denounce Farrakhan for his bigotry. It is inaccurate and inappropriate to silence him for being "dangerous". It is unconscionable for Mark Zuckerberg to decide for everyone whether or not Farrakhan, or Alex Jones, or Paul Joseph Watson, or Laura Loomer, are dangerous.

It is unacceptable that Facebook could ban my Facebook page as well, once I share this blog post there (which I will). 

It is irrational to contend, as Zuckerberg does, that one cannot defend the right of people to speak their minds while at the same time utterly opposing every word they speak. As Voltaire once wrote, "...I detest what you write but I would give my life to make it possible for you to continue to write."

Thus tonight I rise in defense of Louis Farrakhan. I rise in defense of Paul Joseph Watson. I rise in defense of Laura Loomer, and Alex Jones, and Milo Yiannopoulos. I rise in defense of them because Facebook will not allow them to defend themselves.  I rise in defense of them without regard to whether I agree or disagree with things they have said, or things they might say.  I rise in defense of them because, as people, as citizens of these United States, they have as much right to speak as you, or I, or President Trump. I rise in defense of them that I might defend free speech for thee as well as for me. I rise in defense of them because, agree or disagree, their speech matters. 

Tonight I rise in defense of Louis Farrakhan, Paul Joseph Watson, Laura Loomer, Alex Jones, and Milo Yiannopoulos because All Speech Matters.

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