In Part 1, I talked about the power of social media giants and claims of “free speech” on their platforms. Again, I am referring just to the U$, as I am most familiar with the debate on “free speech” there. In the future I may expand this analysis to other capitalist countries. The bourgeois conception of “free speech” is so ingrained that Nadine Strossen, a former president of the ACLU, can spout on The Real News about a “we the people” government in the U$, while declaring that government regulation through net neutrality and antitrust laws, along with consumer pressure, and “free speech” (or counter speech) can stop the bigots in their tracks. This is a laughable notion from a person who says porn should be tolerated (not restricted or banned), is currently a contributor for the Federalist Society, criticized campus speech restrictions, and was a friend and fan of Antonin Scalia! She also, infamously, defended the actions of former ACLU president Anthony Romero, who had agreed to “screen the organization’s employees against terrorist “watch lists”…in order to qualify as an officially approved charity for federal employees,” advising the “Ford Foundation to “parrot” the Patriot Act in formulating controversial new restrictions on the speech of its grantees,” and trying to impose “very broad confidentiality agreement and technology rules on ACLU employees,” as argued by former ACLU board member Wendy Kaminer, who also harshly criticized the organization for its policies on civil liberty. As The Onion joked in one article, when Strossen was president, the ACLU declared that it would “”vigorously and passionately defend” the Georgia chapter of the American Nazi Party’s First Amendment right to freely express its hatred of the ACLU by setting its New York office ablaze on Nov. 25.” That’s how ridiculous the ACLU is, without a doubt.
Last year, the Supreme Court held in Packingham v. North Carolina that a North Carolinian law that restricted access of sex offenders to social media violated the First Amendment. More than that, this case, which was the first major case on the topic since the Reno v. ACLU case in 1997, opens the floodgates for “free speech” to apply to the internet as the latter is considered analogous to a public forum, perhaps leading to further jurisprudence. But more than being a supposed victory for “free expression,” which was likely cheered on by the ACLU, Justice Anthony Kennedy’s majority opinion raises the question of what parts of the internet would fall under First Amendment protection. In this opinion, followed by a blistering dissent from Samuel Alito, Kennedy, clearly a tech optimist, wrote that the First Amendment is a “fundamental principle” meaning that “all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more,” adding that this now applies to cyberspace, including social media, with users engaging in a “wide array” of “First Amendment activity” that is “legitimate” and “protected.”
He added that the digital age has a “vast potential to alter how we think, express ourselves, and define who we want to be” which can quickly change, while implying that the First Amendment may offer some protection for access to social media and the internet. As for social media, he argued that it not only allows “users to gain access to information and communicate with one another about it on any subject that might come to mind” but that it is the “modern public square” that, in his view, allows for people to explore “the vast realms of human thought and knowledge…mak[ing] his or her voice heard.” This is clearly an optimistic view of social media which often is filled with utter and mundane garbage. I think social media includes many more pictures of people showing off their dogs, newborn babies, and silly cat videos, than those who engage in discussion that opens “human thought and knowledge.” What is Kennedy smoking here?
With this decision, the arguments of those like the ACLU that want “an uncensored Internet, a vast free-speech zone,” the EFF that wants “sufficient legal protections for users and innovators,” and Strossen, are clearly boosted. Still, this does not mean there will be “free speech” on the internet anytime soon. While the general conception is that “anyone can say anything online,” this is not only changing but it is inaccurate because intimidation is not protected speech on the internet, along with inciting violence, making threats of violence, privacy invasion, defamation, copyright infringement, inciting a riot or inducing lawbreaking, “fighting words,” false advertising, and disrupting school activities, to name a few. While some say that the First Amendment asserts that one can express themselves “without interference or constraint by the government,” the fact is that a government can “place reasonable restrictions on free speech, such as those that restrict the time, place, and manner of the speech.”
Some have tried to use the Packingham decision to declare that there should be “free speech” on the internet. Others, like White nationalists and Neo-Nazis, have gone even further to draw a parallel between private shopping centers and social media platforms! If this connection was to be made, which is a remote and absurd possibility, those on social media would not be able to “unreasonably intrude” on the private property rights of these platforms, having to “reasonably exercise” their rights while their ideas would not be allowed to have “free rein.” Additionally, their words and actions would have to be deemed peaceful, orderly, and not disturbing the functioning of these platforms, with the latter allowed to restrain the “time, place, and manner” of user’s speech. They could be prohibited from imposing “blanket and total prohibition on the exercise of First Amendment activities” of users but they would also be allowed to restrict those engaging such speech so they did not obstruct or unduly interfere with “normal business operations” or does not impede, distract, or interfere with the business itself.
Furthermore, anyone who engaged in substantial damage or physical obstruction of social media could be restricted or banned, along with being prohibited from annoying and harassing individuals. At the same time, while users could have the right to “freedoms of speech and religion” they could also be restricted if there was a public space where they could use their rights apart from social media, and by the fact that the U$ Constitution provides no protection or redress from a private person or corporation, with the 1st and 14th Amendment not applying to action “by the owner of private property used only for private purposes.” This is not what the bigots would want! Even with these interpretations, Twitter could still say it is a private sector company, which requires users to abide by their rules. Additionally, it is worth noting that these social media platforms are not public since the “supposed public square is actually a small group of digital platforms owned by an even smaller group of giant transnational corporations,” a fact that should be obvious. ((Paul Blumenthal, “The Problem Isn’t Alex Jones’ Free Speech, It’s Digital Platform Monopolies,” HuffPost, August 11, 2018.)). Even Mozilla, which says that “the principle of free speech is a foundation of Western democracy” admits that “free speech gets more complicated in private spaces – that is, spaces not owned by the government…private businesses have every right, legally, to refuse service to individuals who don’t adhere to their stated policies.”
Jimmy Dore and others have said the First Amendment should be applied to Facebook (and other social media) because they see it as a public space and have also said that such outlets should be public utilities. Now, in order to be a public utility, these social media companies would have to be classified the same as other companies providing “a service to the public such as transport, energy, telecommunications, waste disposal, or water and any other public goods and services.” The question arises: are companies like Facebook, Twitter, and YouTube, to give a few examples, public service corporations that engage in operations that “serve the needs of the general public or conduce to the comfort and convenience of an entire community,” which currently includes “railroads, gas, water, and electric light companies”? Well, we know they are clearly private companies with operations which are “executed by private individuals,” comprising some of those in the corporate (or private) sector which is “responsible for the allocation of the majority of resources” within a capitalist economy.
Now, to be a public service company, they would have to “provide a service to the public” which includes “transport, communications and the like.” These social media platforms likely would fall into the category of public service company rather than a public service corporation because they do not necessarily serve the needs of the general public or conduce convenience or comfort of an entire community. Instead they gather private information and make it public, selling it for profit, having great power over people’s lives. Likely such efforts to make social media a public utility will fall flat because the U$ government is legally obligated to “preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation” even with other provisions on civil liability.
The bourgeois conception of “free speech” is broadly held across the Western World. Even the Universal Declaration of Human Rights that recognizes the “right to freedom of thought, conscience and religion” (Article 18) and “right to freedom of opinion and expression” (Article 19) is limited by the fact that everyone can be subject to legal limitations to secure respect and recognition for freedom and rights of others, along with meeting “the just requirements of morality, public order and the general welfare in a democratic society” (Article 29).
There are many laws across the world when it comes to speech, with some countries trying to experiment different levels of censorship online, irking those who defend the bourgeois conception of “freedom of speech,” with some even bringing in anti-communist rhetoric to complain about “the lack of transparency found in Soviet-style governance structures” disappearing in Eastern Europe. Some, like the horrid organization, FIRE (Foundation for Individual Rights in Education) have declared that “the best antidote to tyranny is free and spirited debate, not suppression of speech,” which Jimmy Dore basically expressed on his show, while others like HRW or The Guardian complain about the “Great Chinese Firewall” and challenges “journalists, bloggers and dissidents” have to undertake. This has led to a list of “enemies” of the internet and efforts to break through claimed “closed societies” (one organization gives the examples of Iran and China), believing that making these societies “open” will bring goodness to the world. This id despite the fact that the internet has “been a revolution for censorship as much as for free speech” as The Guardian admitted back in 2008, which anyone with sense would recognize.
Clearly, the majority of those in the Western Left are indoctrinated to think they are free, leading them attack other leftists across the world who holding power as noted by Andre Vltchek. However, his analysis is faulty since he incorrectly describes China, part of the revisionist triad (the other two countries in this triad are Laos and Vietnam), as communist when it has actually been on the capitalist road since 1976, with a form of state-supported form of capitalism which is different from that of the West, and saying that Russia’s policy is “clearly anti-imperialist” when it is actually just nationalistic.
Clearly, some individuals have more of an ability for speech than others. As the subreddit of /r/communism puts it rightly, which I still agree with even though I was ousted as a mod after I began criticizing China as capitalist rather than saying it is socialist (consensus of the subreddit’s mods), “speech, like everything else, has a class character, and that some speech can be oppressive.” This is something those who believe in the bourgeois conception of “free speech” cannot and will not acknowledge. As one person put on Twitter, after responding to a story that the court system in the U$ repealed a law forcing porn companies to “prove that their performers are of age,” that the principle of “free speech” in the U$ almost seems that it is “inherently bourgeois.”
In the capitalist society of the U$ this bourgeois conception of free speech manifests itself by capitalists like Robert Mercer, the Koch Brothers, George Soros, Pierre Omidyar, Mark Zuckerberg, Elon Musk, and many others, having the ability to publish and project their speech more than those on meager budgets. Basically, this means that ordinary people, the proletariat, have no influence (or power in) on the decision-making and politics of the U$ despite all rhetoric claiming they have such influence. How this manifests itself in the world of “free speech” is it means that those capitalists who are hatemongers can spread their horrid message far and wide while those who try to counter them get less exposure. ((The U$ is standing against principles outlined in many international agreements like the UN’s Millennium Declaration (in its section about equality between men and women and “participatory governance), the Vienna Declaration (has a section saying that the international community should comprehensively and speedily elimination all forms of racism, racial discrimination, xenophobia, and other intolerance), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (which says that all states have to pursue a policy of eliminating all forms of racial discrimination, promoting racial understanding, condemn racist propaganda, eradicate all incitement to discrimination, and declare those organizations that engage in racist propaganda illegal), and the International Covenant on Civil and Political Rights (1966) (with a section about how freedom of religion and beliefs is protected by subject to certain limitations, and that “propaganda of war” along with any “advocacy of national, racial or religious hatred” has to be prohibited).))
We do not have to give such speech “respect” as some have declared we should, since there is the idea of the heckler’s veto, where a public event is canceled or suppressed due to “interruptions, protests, or violence” or the threat of such actions, one of the many tools, apart from de-platforming (not by social media outlets, but literally in person or by organizing against them online) which can be used to fight against bigoted or otherwise detestable individuals. In the end, there should be criticism (and efforts to counter) corporate control over information but this does not mean we have to defend hateful speech. Instead, those who speak truth to power, especially on the political Left, should be vigorously defended. As Michael Parenti once put it, “democratic victories, however small and partial they be, must be embraced…We need to strive in every way possible for the revolutionary unraveling, a revolution of organized consciousness striking at the empire’s heart with the full force of democracy, the kind of irresistible upsurge that seems to come from nowhere while carrying everything before it.” Victory to the proletariat! A socialist world is possible!