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.

NEXT: Brickbat: Not Looking for a Few Good Men

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  1. 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?

    If you have a product and customers who want to buy it, but the distributers form a cartel to prevent it from being made available, do you, in fact, have a free market?

    1. ICANN is certainly not “free”

    2. Is requiring a supplier to make their product available to a specific customer a form of compelled labor? Is slavery a free market principle?

      1. They are always free to shut their business down and starve to death instead.

        Just like we spend half our labor producing wealth to be taxed and taken for others as a requirement to be allowed to provide for ourselves. And somehow this is consistent in the minds of people who also think an unskilled worked in the untaxed bracket is a “wage slave”.

      2. Only for wedding cakes.

    3. I’d say yes as long certain conditions are met:

      1) Service Providers can’t have been given a local monopoly. Many carriers have deals with counties that given them exclusive cable rights. If you get the right to run lines on private property through eminent domain then they must also follow the Constitution.

      2) They can’t use government regulation to keep alternative startups from forming. Eg: No getting the SEC to shutdown Tucker autos because they are competing against you.

      I am sure I could think of others but got to get back to work; main point is you can’t in bed with the government on one side and then claim you are a private organization on the other free from government control.

    4. Are florists required to work for any paying customer?

      Are cake bakers required to work for any paying customer?

      Are photographers required to work for any paying customer?

      And yet Google gets a free pass to not work for any paying customer.

      And I’ll say it again: Marxians murdered 100M people in the 20th century and continue doing so today. Nazis killed 10M people last century, and other than that Charlottesville idiot, I can’t remember any recent ongoing Nazi murders.

      Yet Antifa gets a free pass.

      So there’s your answer.

  2. Internet Businesses Rejecting Racists Is an Exercise of Free Speech

    But refusing to bake someone a cake is a crime against humanity!

    1. That gets into the whole “public accommodation” argument. I happen to think it’s bad law, but it is also long established law. If you are in business with the public, you don’t get to pick and choose which part of the public you do business with. I grant that the baker has an argument, in that the business he/she is being asked to do is more creative than selling off-the-shelf, but I have doubts it will hold up.

      This is why it is important to defend the rights of people you despise. The Public Accommodation thing got into law because bigots didn’t want to serve blacks, and this annoyed a lot of nice people. But the bigots have a right to be wrong. The Nazis have a right to be assholes, up to a point. And that point is a damn sight farther along than hurting feelings.

      1. Actually I believe the public accommodation stuff was a feature of common law from long ago. It was recognized that there were certain natural monopolies, and that therefore if they didn’t serve all comers on equal terms, some people would be severely stuck. The example that was given was that of road houses in the turnpike era; there were natural way stations given the speed of coaches, but not enough travelers to support competing road houses at a given point. If certain persons & their draft animals could be shut out or held up for excessive charges, they were shut out of traveling?& along with them, their goods. You could say the same thing of the turnpikes themselves.

        Very few biz today would meet the criterion of public accommodation, unless they’re granted an unnecessary monopoly by the state.

    2. Has Ken White said something like that? Because if he hasn’t, I think you’re being a bit silly here.

      Everyone here knows that statists will always try to compel people to follow their political agenda. But I haven’t seen White advocating for things like that.

    3. Any Nazi’s try to get a cake baked for them at a bakery owned by homosexuals? Ready the popcorn for this one.

  3. I feel like you’re going to regret advocating this. Just like what happened at Google, ideas even slightly to the right will be silenced. These companies may be free to do as they please, but that doesn’t mean they can’t be criticized.

  4. “Popehat: Internet Businesses Rejecting Racists Is an Exercise of Free Speech”

    That could be debatable if the company promises to it;s customers to support the SPIRIT of freedom of speech, press, belief etc.

    That might constitute a basis for fraud when the company actually does otherwise.

    1. No $ down, no contract.

      1. False advertising?

  5. I’ve been told a million times that we need civil rights laws because markets will never punish racists. So this is impossible. It isn’t happening. Businesses are greedy greed-heads, and would never do this without being ordered by the government.

    1. You win the libertarian internet this morning!

    2. Huh, there are non-fascists (or people not giving in to their fascistic tendencies) who make that argument? Not particular liberal (in the definitional or classic sense) or libertarian to “punish racists”. Unless and until they have actually infringed upon the liberties of others, they retain their own just like anyone else. And it shouldn’t matter whether it is the government infringing upon their rights, or “private” monopolies/cartels.

  6. 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.

    …. wow, no way.

    Seriously though, are these other “free speech advocates”?

  7. I agree fully. Internet companies shouldn’t be required to house anything they do not wish to.

    But there is a concern that I mentioned elsewhere: Once you demonstrate that you will refuse to host materials you find offensive, you are — by default — saying anything you DO host you support. Companies used to have the good sense to not go thru the efforts to block “offensive” things unilaterally because of the tacit approval it implies for anything remaining.

    That’s an issue I’d want to no part of. I would have no desire to police every single site on my service to see which ones might offend certain people.

  8. So, all government has to do to eliminate free speech is to eliminate the public sphere and we can keep all those pesky hatemongers from ever bothering us fine upstanding folks. Luckily, we have the Internet set up just the way we like it, all infrastructure provided by large centralized corporations who can be encouraged to make sure that no one we dislike can set up a site much less find an audience. Hell, we’ll even make sure they can’t earn a living at all! Maybe they’ll learn what it means to live off the street! They should have thought of that before they started thinking repressive things!

    I like the guy, but Ken White gets incoherent sometimes, especially where his social liberal feelings get in the way of classical liberal thinkings. And while the counter-protestors certainly had the right to be in the area, they did not have the right to try to shut down the rally and attack its participants. Fascists are known by their actions, not what they decide to call themselves or others. Funny thing, reports say that while the police forced the permitted rally participants to disperse, they didn’t actually do the same to the counter-protestors. Just find it strange that Ken did not touch on all this.

    1. And can anyone else confirm his account of the “go get ’em” routine? Hadn’t read of it, and considering the lack of reports of any of the anti-fa or counter-protestors getting seriously hurt outside of the vehicular incident, they were pretty ineffectual if that actually happened. Kinda sad for what was reported to be such a well-armed gang of thugs. I mean the white identitarians, the original rally goers.

  9. if someone makes a rights-based objection to application of an anti-discrimination law ? whether based on free exercise of religion, or freedom of association ? I think it’s reasonable to ask whether the objection is consistent, or a case of special pleading.

    I keep looking through his blog to see where he said, ” I think those companies Masterpiece Cakeshop have a right to free speech and free association” and i can’t find it. He has a dozen posts on the topic, so it probably exists *somewhere*, its just not the first and immediate response to the question.

  10. So, who gets to decide what is hate speech? Me? I didn’t think so. Ultimately, prohibitions on hate speech are just backhanded censorship. Think of books that have been banned. They were invariably banned for “the greater good of mankind.” They were never banned, outwardly, “because we are offended, and we have the power to stop them.”

    Only governments can legally ban any speech. So, what if the speech is in fact anti-government? Do we trust the government to act impartial? For the greater good of man? Bullshit. Let ’em demonstrate. If any of them commit a serious crime, then arrest that person(s) for that crime.

    As for Google’s and FB’s right to censor, I am of two minds. First, these organizations are essentially monopolies, yet they are not held to laws concerning monopolies. In the past, courts have allowed/denied mergers of media companies based on whether they might attain monopolistic control in a city or region. How is Google or FB any different? Second, if Google and FB are free to use their judgement as they see fit, then why are not landlords and employers allowed to do the same?

    Nothing better insures that double standards will become entrenched than putting the government in charge of eliminating them.

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