Popehat: Internet Businesses Rejecting Racists Is an Exercise of Free Speech

Also, "generally standing around in your tiki torches and your badly fitting Dockers, trash-talking minorities, that's not unlawful incitement," says First Amendment Lawyer Ken White


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There are so very many free speech/First Amendment controversies on in the wake of the Charlottesville unpleasantness, and in the run-up to planned alt-right demonstrations (and counter-demonstrations) that will make headlines the rest of summer. Can lefty politicians pre-emptively ban such demonstrations on grounds of incitement? Does the American Civil Liberties Union, in the words of this memorable New York Times headline, need "to rethink free speech"? Are there culture-of-free-speech concerns when big Internet platforms or service providers jettison neo-Nazi or alt-right customers at moments of heightened scrutiny? And what the hell is going on with the Justice Department's subpoena of information about visitors to anti-Trump websites in the run-up to anti-Trump Inauguration protests?

So I put out the Popehat Signal Wednesday while guest-hosting Sirius XM Insight's Stand UP! with Pete Dominick, to gain some clarity from one of the best First Amendment commentators in the biz, lawyer Ken White. We discussed his great Charlottesville piece, "America At The End of All Hypotheticals," chewed on the ethics of outing alt-right demonstrators (he's fine with it as long as you've ID'd the right people), and then pivoted to private-company disassociation from deplorables:

Matt Welch: […] What should we think about free-speech implications, if any, of large, broad-based Internet service kind of providers kicking people off for their racisty conduct and life?

Ken White: […] [H]ere's where I part company with a lot of other free speech advocates. I think those companies have a right to free speech and free association. If I'm going to go all Romney on you, I'll say corporations are people, too. But instead, I can just say these are businesses run by groups of people, and their free speech desires and free association desires are just as valid as those as the Nazis.

If they don't want to host Nazis on their private platforms, then that's a free speech choice. Whether or not I agree with it, it's on a plane with the decisions of the Nazis to be Nazis in the first place. So, this is…a situation where some people are suggesting somehow that Group B should shut up and refrain from speech, refrain from free association, to make Group A more comfortable in its speech. I don't think that's a coherent philosophy.

MW: I want to get to a phone call, if you won't mind taking one. […]

Reno from Florida: […] I don't know the decision, but I've read that the Supreme Court has ruled that certain types of free speech—i.e. hate speech or certain policies and symbols of those, that type of hate speech—is not protected and is thus…sort of overridden by other people's rights of free association, free speech. So kind of like, someone holds a swastika up in front of me, that swastika is a symbol of a policy of racial cleansing and genocide, etc., etc., [then] it's perfectly within my right to defend myself against those policies. Am I wrong? Or have I heard incorrectly?

MW: Reno, you came to the exact right person in the entire United States for that question. Popehat, go ahead.

White: Reno, yes, respectfully, it's 100 percent completely, unequivocally wrong. There's no such thing, legally, in America, as hate speech as a distinct legal category that's not protected by the First Amendment. In fact, hate speech clearly is protected by the First Amendment.

Sometimes, hate speech might fall into other established categories outside the First Amendment. So, for instance, speech that incites and is intended to incite immediate, serious, lawless action. Like, "Go over there and kill those whatever … those Jews, those Black people." That can be unprotected. But it's unprotected because it falls into an established category. Those categories are narrow and there are few of them. When you say that if someone holds up a symbol to you, do you have a right to defend yourself, the answer is almost certainly no.

So, there's a couple of doctrines where you can defend yourself if you're attacked, but that's not what we're talking about here. You may be referring to the so-called "fighting words" doctrine that suggests that speech is unprotected if it's provocative enough. But that's been narrowed by the Supreme Court, extremely. So they said, for instance, that burning the American flag isn't fighting words. A jacket that says "fuck the draft" isn't fighting words, and so on and so forth. So no, fighting words only applies if someone does an insult directly to your face, directly to you, not to the world in general […]

Reno: Don't hit that guy in the face because…if he hits me with the pole that he's swinging his Nazi flag from, then I'm allowed to defend myself, but not from the flag itself.

White: Oh, then kick his ass then. Absolutely. […]

MW: […] A lot of people are going to say, and we've had people already in the previous hour say, that it's basically incitement to hold a neo-Nazi rally in itself. I was saying, "That's not really the definition." So, walk us through that a little bit.

White: Sure. Whether or not you think that's philosophically correct, it's absolutely not legally correct. In fact, the formative, basic case says exactly the opposite in a remarkably similar circumstance.

So, Brandenburg v. Ohio, the case that articulates the current standard, is a case of a bunch of loser klansmen standing around talking about klansmen theory, and how revengeance—which is their word—might have to be taken, and trash-talking minorities and so forth. What the Supreme Court said is, no, just because you have abstract advocacy and awful theories, that's not incitement. Incitement has to be words that are intended to and likely to cause imminent lawless action.

Now, I think that Nazi marches like the ones we saw in Charlottesville are environments where it's more likely that you could see things that actually rise to that level. I've heard some reports that there were some people amongst the various Nazi clans telling their people, "OK, go get them now." That's a great example of incitement: It's asking for imminent action, it's likely to happen, the action asked for is serious. So that could very well be incitement.

But generally standing around in your tiki torches and your badly fitting Dockers, trash-talking minorities, that's not unlawful incitement. But I think it's absolutely reasonable to watch Nazis very carefully, and watch for the time in these incendiary circumstances when any of them are saying, "Look at those Blacks and Jews and gays over there, go get them." That would be incitement.

MW: Before we let you go, I wanted to have you highlight for listeners who might not have seen this piece of news in the avalanche of craziness that we live in: The Department of Justice has apparently subpoenaed visitors to an anti-Trump website. Can you quickly tell us what the hell that's all about and what we should think about it?

White: Sure thing. There was a website that was basically encouraging people to help disrupt Trump's inauguration. It had a huge amount of traffic and it also had opportunities for you to ask questions and send messages to the site. So as the D.C. police and D.C. prosecutors are prosecuting people for disrupting the inauguration, and for violence and property damage that day, they got a search warrant for this site, which is hosted by Dreamhost. The warrant is disturbingly broad in that it doesn't just ask for things directly connected to those crimes. The feds want the log of everyone who ever visited the site.

So basically, this is the Trump Administration saying, "I want to see a list of everyone who ever visited an anti-Trump site, and I want all the communications with the anti-Trump site." It's an unusually broad search warrant. It's disturbing, a lot of legal commentators agree. It's currently being challenged in the court there, and I think the only point that to me might make it a little less bad is it could just be incompetence, rather than malevolence. In other words, it could just be a standard, sloppily drafted, rubber-stamped warrant that doesn't really involve coherent thought [of] "Let's get a list of Trump's enemies." but it's just prosecutors who aren't used to being asked to do anything legal in a competent way.

MW: […] We have another caller from Columbus, Ohio, Nick, who has a question. Nick, go.

Nick: Hi gentlemen, here's the question I have. On the legal document they needed, the permit for the supremacist groups in Charlottesville, that is because they were taking access to roadways and for their own safety, if I'm not mistaken. I hear a lot of the far-right people saying, "Well, one was legally there, and one wasn't." They all have a legal right to peacefully assemble. Am I incorrect on that?

White: You're correct.

So first of all, you didn't even need a permit in Charlottesville, as I understand it, to generally assemble. Cities can't get around the First Amendment by creating elaborate permit requirements. The First Amendment still applies, and it limits the way you can use permit rules. So yeah, the suggestion uttered by, God help us, the president of the United States, that somehow the protestors were illegitimate because they didn't have permit, is nonsense. It's not a valid, legal argument. So cities can't eliminate protests through permit requirements, nor can they stop normal, lawful assembly and protest. […]

MW: […] Popehat, thank you so much for your insight today, which as always is very elucidating for me. Tell us in the 60 seconds before we cut you off with the heckler's veto here, what are you worried about, right now, going forward in the wake of all this stuff?

White: You know, I'm worried about tumultuous times as ever, making people think that we can make things better by abandoning the rule of law, due process of law, freedom of expression, that type of thing. That's always a danger, we've seen it since 9/11. I'm also worried about a genuine resurgence in white nationalism, overt racism, people justifying those things, and for want of a better word, neo-Nazis in America.

MW: Did you watch the Trump press conference yesterday?

White: Yes, I did, and I was repulsed. You know, standing up for the rights of people doesn't mean that we should excuse their exercise of that right. I think, in fact, it creates an obligation to speak out. So, I'd like to see a president who can say without any equivocation, Nazis and white supremacists are bad and evil and we should fight them.