Democratic 2020 Candidates Flirt With Unconstitutional Censorship

Supreme Court to hear contraception mandate case
May 22, 2019

Buzzfeed reports today that several 2020 Democratic presidential candidates are looking at ways to tackle the growing problem of white nationalism. That's good!

They also report that some of them are endorsing the idea that the government should regulate speech on social media companies as a means of doing so. That's bad! That's very bad!

Most of the quotes from the candidates are vague, likely because they recognize it's basically impossible for Congress to pass a law aiming to diminish the reach of a certain ideology on a private social media platform without blatantly violating the Constitution. Kamala Harris for example promised if social media giants allowed white supremacist content, "we are going to hold you accountable as a community," but the campaign "did not specify what holding social media companies accountable would look like." Cory Booker's campaign likewise "did not clarify if he’d specifically support regulating social media companies to curb white nationalism."

Others are a bit more explicit. "Bernie believes we should not depend on a handful of large corporations to stop the spread of hate in America. We must regulate these platforms to ensure the safety and security of the American people," a Sanders spokesman said.

"We’ve largely let these companies be completely unregulated. They’ve been unregulated with respect to our privacy, they’ve been unregulated with respect to the filters they create. They’ve largely been able to get away with any kind of acquisition they want and create avoidably integrated monopolies," says the John Delaney campaign. "So there’s a huge number of issues there that affect the society in lots of ways, and that’s clearly one of the ways how hate is being spread online."

But even the vague statements are phrased in a way to pay lip service to the conceit that it is the job of the president of the United States to do something about hate speech on privately-owned websites. Several Democrats ignored Buzzfeed's requests for comment, but not one responded with the correct but certainly unpopular answer: white nationalist speech is deplorable, but I would take no action in a government capacity to force it off social media.

Would I prefer zero white nationalists on social media? Of course. Do I care when social media companies ban white nationalists? I don't really, no, even as other conservatives warn of a slippery slope. But there's a world of difference between individuals exercising their freedom of speech to convince a private company to ban certain categories of speech and the federal government getting involved.

The idea Democrats are flirting with (and Facebook co-founder Chris Hughes openly called for) runs into all the same problems other "hate speech" proposals do. A government that has the power to ban or otherwise curtail white nationalism on Twitter or Facebook has the power to do so for other categories of speech. What's the limiting principle here? Who's the government bureaucrat or politician empowered to decide when an opinion is "hateful" enough to be worthy of censorship? Who appoints that guy? I can't believe three years into Trump's presidency, liberals still haven't learned the lesson that the executive power they gift Democratic presidents can later be wielded by a president they despise.

Even if they wanted to impose government checks on white nationalist content on social media, there's the small problem that the Supreme Court would certainly find it unconstitutional. There are a host of SCOTUS rulings I could cite here, but the most recent example would be the unanimous 2017 decision in Matal v. Tam. The government's argument that they could block offensive copyrights, Justice Alito wrote, "strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'"

There are instances where white supremacist rhetoric crosses the line into incitement, but under current law that bar is very, very high. Even general calls to violence have been found to enjoy constitutional protection. Social media companies rightly ban such content, and yes, they're often bad at it. But the federal government cannot spur social media companies to be better at banning speech the government itself lacks the power to punish.

As a postscript—and perhaps this is uncharitable of me—I can't help but wonder about the reporter's motive for writing this piece. Contacting campaigns and asking their stance on issues is a perfectly valid journalistic tactic. But it's also a common tactic from activists pushing their pet issues, and it's not as though there was some sort of news hook Buzzfeed was working off of.

I find it unlikely a Buzzfeed reporter called up campaigns asking their stance on banning Internet hate speech either because he's a libertarian trying to expose the Democrats or has a weird, dispassionate focus on the issue. It seems to me more likely a reporter who supports government regulating Internet hate speech called up a bunch of campaigns hoping "start a conversation" and get them on the record supporting the same. That the reporter uncritically cites German hate crime law—while neglecting to mention similar laws in the U.S. would quickly be struck down—strengthens that impression.

I hope Democrats step away from the precipice. Kicking @GrandWizardPepe off Twitter makes for a momentary and fleeting victory, but the damage to our fundamental rights would last beyond our lifetimes.