Scott Tibbs
"Hate speech" is free speech
By Scott Tibbs, December 20, 2023
Piers Morgan lambasted X (formerly Twitter) for
restoring the account of Alex Jones. The lies Jones has told about innocent people are evil, certainly. InfoWars cult followers harassing grieving parents and vandalizing the victims' graves is Satanic. The First Amendment does not prevent people from seeking damages from defamatory speech.
Morgan is wrong, however, when he says the First Amendment does not protect "hate speech that provokes physical intimidation and death threats." Actually, it does. Thanks to
Brandenburg v. Ohio, the legal standard for establishing criminal incitement of violence is very strict. In order to be illegal, the speech must be "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
Jones' lies have been legally established as defamation, but his speech was not a criminal act or incitement to violence - nor should it be. As much as we may be revolted by Jones, giving government too much leeway to charge someone with incitement will guarantee that the government will abuse that authority to jail people for dissenting opinions.
What exactly is hate speech, by the way? I hate the practice of stealing from people with dishonest telemarketing schemes. Is ranting about this theft hate speech, or is that hatred not included? Is criticism of some of the excesses of Black Lives Matter considered hate speech? Is criticism of police misconduct considered hate speech? Basically, "hate speech" is anything someone does not like, so it gets labeled as "hate." That way, you do not have to deal with substantive arguments people make. They are just "haters." But like it or not, unless it meets the
Brandenburg standard, "hate speech" is free speech.
By exiling "hate speech" from the Big Tech platforms, we lose the opportunity to interact with, shame and refute that speech. It allows hate to grow and fester undetected, and encourages people to develop conspiracy theories about how "they" are silencing the "truth" about various topics. It can even reduce or eliminate the opportunity to have a civil dialogue with extremists offline that could make them see the error of their ways.
Jones was the proverbial canary in the coal mine. Big Tech obviously colluded in banning him from multiple platforms simultaneously, and in my opinion there never has been an appropriate investigation of whether this collusion violated federal anti-trust laws. But make no mistake: The Left does not see much difference between Jones and other mainstream conservatives. Jones is the same as Ben Shapiro, Tucker Carlson, Tomi Lahren, Jonah Goldberg, Megyn Kelly, Dan Bongino, Doug Wilson, Sean Hannity, George Will and David French. (OK, maybe David French should be excluded from that list.)
Jones was always a test case, not a legitimate stand on principle. Would there be a reaction to banning an outlandish figure like Jones? If the precedent is set that he can be silenced, who is next on the list? Who can be silenced after that? We already saw Paul Joseph Watson banned from Facebook and Instagram on very weak grounds. We should not pretend that there is not an effort to shrink the Overton Window to much smaller than it is right now. Precedents are a real thing, and the "slippery slope" is not a logical fallacy if the slope actually is slippery.
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