'First Amendment Rights' and the Lesson of Robespierre
Robespierre was one of the central figures in the reign of terror that followed the French revolution. At the start of the reign of terror, he was one of the most powerful men in France; people were sent to the guillotine on his say-so. But within a year, he was on the tumbrel himself, having tried but failed to kill himself the night before.
So, with Twitter and Facebook "social justice" mobs, it’s not too much to say that we’ve got another reign of terror, in which people can be driven from public life and have their lives and livelihood destroyed by the Robespierres of the mob. When someone protests that their First Amendment rights have been violated, the common answer is that these are private companies. But “First Amendment rights“ is something that’s become a convenient shorthand for the natural rights of free speech that the First Amendment exists to protect from government interference. The right is not provided by the First Amendment, it’s guaranteed — however imperfectly — against the government by the First Amendment.
Right now, we’re seeing a concerted attempt by the Coastal Clerisy to suppress certain speech. That is no less an attack on the natural right of free speech for being done by a collaboration — I daresay even a conspiracy — of private actors. Perhaps surprisingly, President Trump has very concisely tweeted a libertarian position on this:
Let’s say — by analogy — that the New York Times and the Washington Post were pressing for Elizabeth Warren‘s covertly-fascist corporate governance law, and the newsprint and ink manufacturers decided to jointly refuse to sell any more newsprint or ink to the papers. I doubt that anyone would be happy with this — in particular the editors and writers at the Post and the Times. It would be seen, rightly, as an attack on freedom of the press even if it wasn’t being done by government action. No, it wouldn't really be an attack on their First Amendment guarantees, but it would be attacking the freedom of the press nonetheless.
The major Internet players — Google, Apple, Facebook, Twitter and the others — until recently have seen themselves more or less in the position of the purveyors of newsprint. They take no responsibility for the content they publish for the same reason that we don’t hold newsprint companies responsible for what’s printed by the New York Times. Those major players lobbied for law and regulation to establish that. The justification was that they were simply a delivery mechanism and not responsible for the content.
But when those companies take it upon themselves to regulate what people may say on their services, they’re no longer in the position of the purveyors of newsprint. They have become editors and publishers and even in the world of Sullivan v. New York Times, we hold editors and publishers liable for maliciously false or libelous content.
I don’t think the Coastal Clerisy wants to head down that road. Imagine if instead of the anticipated “blue wave“ they are surprised again and Congress is even more dominated by MAGA Trumpist Republicans. Do they want to be in the position of being liable for “fake news“ that they are propagating? Remember that the term fake news was originally invented to talk about stories being sent through the Internet that were intended to cause trouble and become viral. (Of course, now we all think that was “the Russians” but we actually know that it started with a liberal — if not leftist — who thought he could make a lot of money by playing on the credulity of the right wing — and sadly proved himself correct.)
Take it a step further. What we normally think of as an Internet address, the “domain name“ like PJmedia.com, is maintained by a now-international body. (Thanks, Obama!) What if that body, dominated by the 180 or so countries and regions that don’t have a First Amendment, determined that the New York Times was libeling, say, Vladimir Putin — and removed their domain name from the DNS service? That would certainly be unacceptable — but that’s exactly what the Coastal Clerisy wants to do with these unacceptable voices.
This is a very slippery slope.
Once we stop treating the Internet as just a medium like newsprint and start treating Internet hosting companies as publishers, we make them vulnerable to oppressors and we can be sure that some of them will not have what we see as the “public good” in mind.
This is the lesson of Robespierre: once you establish that something may be done for you, you establish that it can be done to you.
Learning that lesson when you're already riding the tumbrel is too late.