11 June 2019

Shouting Fire In A Crowded Theater: An American Right

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.
Oliver Wendell Holmes, Schenck v United States (1919, 249 US 47)

The other day, Facebook censored me. In their vast, infinite wisdom, the powers that be Zuckerberg decided this post, which I had also put out on Twitter, was offensive:
I am unsure of why Facebook felt this was offensive and needed to be removed. Certainly, none of the other platforms expressed any concern over the item. Nevertheless, shortly after making the post I was greeted with this in my Facebook inbox:

The reflexive response of the classical libertarian is to scoff at my discomfiture, and remind me that, as a private company, Facebook is entirely within its rights to decide what can and cannot be posted on its platform. Certainly it is true that we do not want, as a rule, government micromanaging the affairs of private enterprise.

But is Facebook within its rights to arbitrarily ban such content? Does that claim stand up under scrutiny? I have come to the conclusion that a proper reading of the First Amendment means that Facebook does not have such a right.

Let us begin with the text of the First Amendment itself:
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 common presumption is that the First Amendment acts to prevent the government from inhibiting one's freedom of speech, but private individuals are free to do so with impunity.  Yet the text of the Amendment itself does not support such a restriction.  The rule is simple: Congress cannot pass any law which results in an inhibition of speech. This binding upon Congress is simple, categorical, and absolute--in its language the First Amendment, along with the Second, are the most categorically phrased and rhetorically inflexible passage in the whole of the Constitution, including its amendments.  

If a law inhibits free speech, regardless of scope or intent or involved agency, that law is immediately repugnant to the Constitution and must therefore be declared void, as per Marshall's famous conclusion in Marbury v Madison (1803, 5 US 137). Marbury and the language of the First Amendment admit of no other conclusion.

As it so happens, there is such a law, under which Facebook is given free rein to block, screen, and delete content it deems "offensive"--the Communications Decency Act, or rather the "safe harbor" provision of that statute found at 47 USC 230. Social media platforms are protected from liability when they take steps to "protect" people by blocking content that is offensive and hateful. By virtue of that law, Facebook is given liberty to decide that even a scholarly mention of Adolf Hitler warrants suppression and censorship.

My contention is that this law is blatantly unconstitutional. There is no denying that a bit of speech was suppressed, and thus my right of free speech was abridged. On what basis? Contrary to their notice of my post being deleted, it was certainly not "spam", and certainly not by their own standards. The closest any of my page postings gets to being "commercial" is the link I have for people wishing to support my research efforts by donating via BuyMeACoffee, but even at that, the post does not fit Facebook's definition of spam.

Further, my post was not "hate speech" according to Facebook's own definitions within their community standards, and could not be banned on that basis. 

Given that my posting referenced a news item in The Guardian, the basis for the post was unquestionably factual, as is the news item itself: the content removal on YouTube is having these side effects. As a statement of demonstrable provable fact, such a post is unquestionably speech and unquestionably constitutionally protected speech. By Facebook's own community standards, such speech is not only permissible but even encouraged:
Voice: Our mission is all about embracing diverse views. We err on the side of allowing content, even when some find it objectionable, unless removing that content can prevent a specific harm. Moreover, at times we will allow content that might otherwise violate our standards if we feel that it is newsworthy, significant, or important to the public interest. We do this only after weighing the public interest value of the content against the risk of real-world harm.
With no substantiated violation of their community standards, and given the principles articulated in those standards, not only was Facebook not empowered to delete the post but it had asserted a positive duty to permit such content. Thus their necessary reliance on 47 USC 230 as a cover for their arbitrary deletion of my content. If 47 USC 230 is unconstitutional then Facebook's action was wrong and indefensible.

How is 47 USC 230 unconstitutional?  47 USC 230(c)(2)(A) eliminates any civil liability for social media platform providers who block "objectionable" content even if that content is constitutionally protected. Put simply, it empowers social media platform providers to abridge the freedom of speech. Constitutionally, that can not stand. The First Amendment is the superior law, and explicitly forbids Congress from granting such waiver of liability.

The Schenck decision, in addition to being famous for Oliver Wendell Holmes' oft-quoted (and oft-misquoted) declaration, provides much of the judicial reasoning by which Congress is given leave to circumscribe the First Amendment and abridge not just freedom of speech but of the press, of peaceable assembly, and the capacity to petition for redress of grievance. In particular, it articulates the "clear and present danger" standard by which much incendiary speech is often curtailed under the law:
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.
With the excessive effluence typical of legal writing, Holmes establishes in case law what is arguably common sense: when speech inspires specific action the speaker is to some degree responsible for the action.  Perversely, even though Holmes' reasoning on the evolution of speech into action (which may be circumscribed by law), his conclusion in Schenck was fatally flawed, because he never established a foundation to presume Congress had a right to prevent the actions being encouraged (i.e., obstructing the draft of soldiers to fight in World War I). However, the flawed conclusion should not detract from the relevance of the reasoning, because it reiterates how people can and should respond to speech, particularly controversial and incendiary speech--people should be held to account for their actions, not their ideas.

An important aspect of Holmes' "shouting fire" example that is frequently overlooked is the word "falsely." Holmes very clearly identifies that false speech which creates a disturbance is a problem, and in his example this makes sense--if a person shouts fire in a crowded theater, and there is a fire, panic or no his words arguably will save lives. Only if there is no such danger does the incited panic create a danger.

This concept appears again in Brandenburg v Ohio (1969, 395 US 444) , in which the "Brandenburg Test" was established, creating a two part test by which speech advocating criminal acts could be circumscribed:
  1. The speech is “directed to inciting or producing imminent lawless action,  AND
  2. The speech is “likely to incite or produce such action.”
The linkage is clear: people must account for their actions, not their ideas.

While we commonly presume these criteria apply only to government acts and agencies--and certainly the Brandenburg Test is necessarily limited to governmental authority, as it involves explicit criminality--accountability standards among private citizens and thus private corporations is a foundational element of even civil law.  Accountability is what allows for the creation and adjudication of torts, civil wrongs for which liabilities are assessed based on provided facts and evidence. As accountability is a doctrine that goes beyond government authority and agency, it is hardly a stretch to argue that prohibitions against abridgments of free speech also go beyond government authority and agency.

When Congress passed the Communications Decency Act, it empowered social media platform providers to decided whether or not people should be allowed to shout fire within their crowded theaters--not falsely, but factually. They are empowered to police not actions, but thoughts and ideas, a legal doctrine that is charitably described as Orwellian.

Moreover, despite the passage of the CDA, the courts have established that social media are a "digital commons", the public square of the 21st century.  This was articulated in 2017 by Justice Anthony Kennedy in Packingham v North Carolina (2017, 582 US ___) , and reiterated by Judge Naomie Reice Buchwald in Knight First Amendment v Trump, (2018, 302 F.Supp.3d 541) in her ruling establishing President Trump's Twitter feed (if not all of Twitter itself) a public forum. The CDA gives private citizens the power to police the digital commons in a way the government is not allowed to police a physical commons.

The standard Oliver Wendell Holmes articulated in Schenck was the correct standard, even if erroneously applied: hold people accountable for actions, not thoughts and ideas.  We can withstand incendiary words, even violent words, and certainly controversial words  Challenging thoughts will not harm us, and may even educate us. So long as we do not substitute physical violence for rhetorical violence, so long as we remember that our right of free expression does not give license to seek out the harm of any other person, we should not seek to inhibit the expressions and speeches of others.  We should be reluctant to silence and suppress, not eager. Censorship is never good policy--it is not good public policy nor is it good business policy. In most cases, it is not even legal (and should not be thought of as legal despite the highly erroneous rulings of the courts in this regard).

The First Amendment says Congress shall pass no law abridging the freedom of speech. It should be intuitively obvious that, with such prohibition in effect, Congress may not pass any law empowering  private citizens to do it for them.


  1. Your argument may be valid, but your facts are lacking:You Tube still hosts tons of videos explaining NAZIs and Hitler.

    1. Thank you for commenting.

      The relevant fact is that the post which triggered this bit of scribbling was a comment on a legitimate news article legitimately published by a legitimate source.

      The accuracy or inaccuracy of the article would have been a very worthy discussion to have, as it directly impacts questions of journalistic credibility and debates over the meaning of "free speech". That debate was foreclosed unilaterally by Facebook and without any justification.

      Which for me is why the First Amendment matters, and why we must, in this technological age, regard platform access and ability to post such content as we will as essential civil liberties. If we are not able to debate and discuss ideas, be they however awkward or uncomfortable, how are we to learn from one another?

  2. Your argument isn't even valid because the 1st Amendment ONLY applies to the government restricting your free speech. Face Book is a business and therefore can set their own rules, just like your employer can fire you for telling the CEO to kiss your ass. Don't like it, don't use FB, but quit whining.

  3. If a law restricts speech, it is unconstitutional. THAT is what the First Amendment says.

    The CDA restricts speech--explicitly restricts speech--and it empowers Facebook to take actions it otherwise likely would not take,certainly not without risk of liability.

    A law repugnant to the Constitution is void. That has been a standard of American Jurisprudence sine 1803.


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