I find few issues more ethically perplexing than censorship. Not censorship by the government—the Founding Fathers (or First Daddies, if you prefer) made that one pretty easy for us. Legally, constitutionally, morally, the government cannot abridge the freedom of speech. If you want to stand in the town square shouting your grandma’s chicken soup recipes to the world (or, in the case of a Florida man, display a bumper sticker on your truck that reads, "I EAT ASS") have at it. The heavy boot of the government cannot stop you, for better or worse.
There are, of course, some consequences to this. Given the appropriate permits, Nazis can, quite literally, march in the streets. But the same laws that protect Nazis also protect civil rights activists, AIDS activists, gay rights activists, women’s rights activists, pro-choice activists, and other groups that have faced widespread opposition at one time or another. We put up with the potential for Nazi rallies to protect everyone else.
That said, our rights to free speech are not endless—threats aren’t protected by the Constitution, nor is defamation, or attempts to incite violence. Still, the U.S. has among the most robust civil liberties on the planet, for better (speech) or worse (guns). In places like North Korea, China, Russia, Syria, Eritrea, Uzbekistan, South Sudan, Turkmenistan, Somalia, Sudan, Equatorial Guinea, Central African Republic, Egypt, Ukraine, Turkey, Saudi Arabia, and plenty of others, there are few government protections for speech at all, and you can be fined, jailed, or even executed for speaking the wrong opinion. This includes journalists. According to the Committee to Protect Journalists, since 1992, an estimated 213 journalists have been killed by state governments.
While your chances of being executed for wrongthink are far less likely liberal democracies, free speech is still limited. Denying the Holocaust is illegal in 16 Europeans countries and Israel. Last year, an 89-year-old woman in Germany began a two-year prison term for denying that Auschwitz was a death camp. In Canada, promoting hatred against protected groups is punishable by five years in prison. In England, the police will visit your home if you call someone names on Twitter. Truly. It happens more and more.
As much as I would love to see people who annoy me Twitter get arrested, the First Amendment makes this impossible: In the U.S., we can say almost anything we want, and the government cannot legally stop us. Not that they won't try: Several times in recent years, Congress has introduced bills that equate criticism of Israel on public campuses to anti-Semitism. According to the ACLU, this is "part of a disturbing surge of government-led attempts to suppress the speech of people on only one side of the Israel-Palestine debate." This bill, which was most recently introduced in April, has yet to make it into law, but if it does, the people have legal recourse, and we can thank the First Amendment for that.
But here’s where things get muddy: The First Amendment doesn’t just cover free speech. It also covers free association, and in part because of this very necessary clause, censorship in the private sector is perfectly legal.
Last week Facebook and Facebook-owned Instagram announced a ban on a number of controversial blowhards and conspiracy theorists, including Alex Jones, Paul Joseph Watson, Laura Loomer, Louis Farrakhan, Milo Yiannopoulos, and Paul Nehlen. I’m no psychiatrist so I won’t call these people crazy, but they do promote some bat-shit ideas. Although he has since disavowed and apologized, Alex Jones, infamously, promoted the idea that the Sandy Hook shooting was a hoax. Farrakhan regularly references “Satanic Jews.” Paul Nehlen is openly white supremacist—and he ran for Congress. Twice.
Freedom of association means Facebook and Instagram have every right to serve or not serve whomever they want. They also aren't government entities, and so they aren't obliged to adhere to the First Amendment in crafting their own regulations. The digital world may now act as the town square, but this town square is owned by corporations, which are under no obligation to host people or content they ideologically oppose. No shoes, no shirt, no screaming about Satanic Jews, as the saying goes.
Most of the figures banned by Facebook are Trump supporters so it’s not exactly surprising that shortly after the bans were in place, Donald Trump announced a new online tool where people can report cases of social media bans or suspensions due to “political bias.” Now, I’m 100 percent sure that social media companies, like most of the world, are (rightfully) biased against Donald Trump, but it is deliciously ironic that the leader of the party that likes to rail against “big government overreach” is asking people to tattle to the White House when they’re suspended from Twitter. Would Donald Trump give a shit about online free speech if the people being banned were Hillary Clinton supporters? We all know the answer.
People have called for Alex Jones and the others to be banned for years. When Facebook and Instagram finally did it, they said the accounts violated their community standards, which read: “In an effort to prevent and disrupt real-world harm, we do not allow any organizations or individuals that proclaim a violent mission or are engaged in violence, from having a presence on Facebook.” To this end, they are cracking down on groups and individuals involved, in their words, in “terrorist activity, organized hate, mass or serial murder, human trafficking, and organized violence and criminal activity.”
This is a completely reasonable position. Facebook and other social media platforms have been used to sow terror in places like Myanmar, where members of the military engaged in a systematic propaganda campaign to target the country’s minority Muslim Rohingya. People were raped, murdered, and forced to leave their homes in the largest forced migration in recent history, and Facebook, in part, is to blame. The platform enabled a genocide, and it is Facebook’s responsibility to police their platform in a way that diminishes the possibility of that happening again.
And yet. Censorship is an inherently slippery slope, and it’s not just people promoting genocide or engaging in illegal acts that tech companies are now banning. Over the past year, several prominent radical feminists have been banned from Twitter for misgendering transgender people. Now, I’m personally opposed to misgendering, which I find both unkind and counterproductive, but it’s hardly illegal. Writer and Feminist Current publisher Meghan Murphy was permanently banned for referring to a transwoman who identified herself on various platforms as Jonathan Yaniv as "he." Before that, Murphy had been suspended for tweeting "men are not women." Murphy had tens of thousands of followers on Twitter, which was her primary means of finding an audience, and the hit to her career, she is now arguing in a lawsuit against Twitter, was not insignificant.
A number of gender critical trans women—who believe that the concept of gender is inherently oppressive and sex cannot be changed—were permanently banned from Twitter for misgendering as well, as was Oren Amitay, a clinician and sex researcher who was banned for referring to notorious Twitter troll as “he/she.”
For whatever reason, commentary on sex and gender, in particular, seems to trigger suspensions across social media. Until recently, Victoria Hartmann, a sexologist and the director of the Erotic Heritage Museum in Las Vegas, hosted a show on YouTube called Baking Naked. On the show, she and a colleague would talk about the latest in sex research while baking various pastries and cakes. Their assistant in these episodes was usually a nude sex worker who would lend her perspective, and, they hoped, demystify and normalize sex workers themselves. Nudity is against YouTube’s terms of service, but the sex worker’s body was heavily pixelated. It was no more revealing than a game of Minecraft. Hartmann was notified that the show, despite the giant blocks covering the nude women's bodies, still violated YouTube’s prohibition on nudity, so she took those episodes down and left up vlogs of she and her co-host talking about sex research. Their perspective was, broadly, pro-science and pro-sex—they discussed controversial issues like rapid onset gender dysphoria and the myth of porn addiction—but it wasn’t exactly explicit. Still, in early May, Hartmann was notified that her channel had been suspended.
Hartmann says YouTube’s decision surprised her. “We’d worked diligently to keep sensitive content off the channel,” she told me. “When we were notified they took issue with some of the censored nudity, we took those videos down. Now we’re concerned that anything that doesn’t fit a socially acceptable narrative about sexuality is going to be suppressed.”
This is the problem with censorship. What starts out as a good faith campaign to end hate and violence creeps into something else. Hartmann herself is torn on the issue of censorship. “It’s complex,” she said. “I’m very sensitive to concerns about hate speech. I grew up in Germany. It’s not unheard of to jail people there who are Holocaust deniers, and I think it’s justified there. Sometimes speech can hurt, but I fail to see how one can equate sex research in the same category as hoaxes and conspiracy theorists.”
And that’s exactly the problem, because while social media platforms have legitimate moral reasons for censoring some content, what’s considered offensive, what’s considered hate, is all in the eye of the offended.
There is, however, a way for social media companies to police their platforms without using completely subjective definitions of "hate speech" to guide them, as David French wrote in the New York Times last year after Apple, Facebook, and YouTube removed Alex Jones' Infowars from their platforms: "The good news is that tech companies don’t have to rely on vague, malleable and hotly contested definitions of hate speech to deal with conspiracy theorists like Mr. Jones. The far better option would be to prohibit libel or slander on their platforms," French wrote. "Private corporations can ban whoever they like. But if companies like Facebook are eager to navigate speech controversies in good faith, they would do well to learn from the centuries of legal developments in American law. When creating a true marketplace of ideas, why not let the First Amendment be your guide?"
Whether we like it or not, social media companies have become the public square, and as owners of the public square, Facebook, Twitter, Instagram, YouTube, and all the rest have become responsible for deciding what is beyond the pale of acceptable thought. I’m not okay with this, but at the same time, I’m even less okay with the Myanmar military using Facebook to commit genocide. Can you have one without the other? I'm not sure. As Hartmann said, it’s complex.