Liberals long revered the First Amendment, before embracing censorship in the era of Trump

Conservatives begin to plot an offensive against social media censorship.

Published: January 9, 2021 10:51am

Updated: January 11, 2021 10:21am

Once a Klu Klux Klan member from the South, Hugo Lafayette Black transformed himself into a bona fide New Deal liberal on his way to becoming a member of the Supreme Court. There, he wrote in 1957 one of the concurring opinions that defined liberalism's defense of free speech for more than a half century.

"Doubtlessly, dictators have to stamp out causes and beliefs which they deem subversive to their evil regimes. But governmental suppression of causes and beliefs seems to me to be the very antithesis of what our Constitution stands for," Black wrote in the landmark case Yates vs. United States, in which the justices ruled 6-1 that revolting and reactionary speech was protected by the First Amendment unless it incited a "clear and present danger."

"The First Amendment," Black added, "provides the only kind of security system that can preserve a free government — one that leaves the way wide open for people to favor, discuss, advocate, or incite causes and doctrines however obnoxious and antagonistic such views may be to the rest of us."

Black's sentiments that speech, no matter how offensive or even inaccurate, was protected except when it incited imminent danger or harm became the rallying cry for generations of liberals. Scions of Yale and Harvard and the American Civil Liberties Union used Yates and other derivative Supreme Court rulings to argue that flag-burning, possession of obscene materials in one's home, and other offensive expression were protected by the Constitution.

"If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch," the iconic liberal Justice Thurgood Marshall wrote in 1969. "Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."

But a funny thing happened midway through the Trump era: Liberals suddenly embraced the tools of censorship. Bypassing First Amendment protections from government speech controls and instead privatizing sweeping speech and information controls, social media and tech giants purged from the dominating speech forums of our day — Facebook, Twitter and YouTube — content deemed offensive, inaccurate or politically incorrect. The rallying cry for censorship was "conspiracy theories." 

Shortly before the efforts proliferated, the ACLU made a last-gasp defense of the First Amendment, worried that Facebook's early censorship efforts in 2018 might also constrain minority or liberal causes, like Black Lives Matter or repressed minorities around the world.

"What's at stake here is the ability of one platform that serves as a forum for the speech of billions of people to use its enormous power to censor speech on the basis of its own determinations of what is true, what is hateful, and what is offensive," wrote ACLU staff attorney Vera Eidelman in a July 2018 article entitled "Facebook Shouldn't Censor Offensive Speech." "Given Facebook's nearly unparalleled status as a forum for political speech and debate, it should not take down anything but unlawful speech, like incitement to violence."

Soon, the dam would break. Conservative conspiracy theorists like Alex Jones or audacious Trump allies like Roger Stone were censored or muted. The president's own tweets were labeled or disputed. Even bona fide news stories were blocked. Twitter, for instance, banned for days before the 2020 election accurate stories from the New York Post about contents of a hard drive turned over to the FBI agents investigating Hunter Biden, only to declare it a mistake after the election when it was confirmed Hunter Biden was under investigation.

Suddenly, liberals like Mark Zuckerberg and Jack Dorsey were the deans of censorship, and conservatives who once fought flag-burning were championing free speech.

The legal status of these fights remains uncertain, in part because social media companies are privately owned, but at the same time they enjoy federal immunity under the Section 230 legal doctrine.

Trump's speech this past week before the Capitol riots, legal experts say, also may fall close to the line of Black's definition of incitement.

But much of the other censorship going on in America today, legal experts worry, seems antithetical to the long-held liberal doctrine that speech, no matter how offensive, inaccurate or despicable, must be protected.

In America, "you have to be willing to support the free speech of your enemies," the famed Harvard law professor emeritus Alan Dershowitz told me recently as he decried a "mob rule" mentality and "cancel culture movement" sweeping America. 

"The cancel culture is a direct frontal attack not only on freedom of speech ... it cancels due process," he warned. "It doesn't matter if you are innocent or guilty."

While in the most famous cases of censorship the Supreme Court has focused on government actions, a group of lawyers has begun to privately discuss whether a lawsuit could be brought on the theory that internet companies rely on federal immunity and public assets, like public spectrum and cable wires traversing public space, and therefore should be held to a similar First Amendment standard, according to interviews.

In addition, conservative activists have begun organizing behind the scenes to impose an economic penalty on the investors of Facebook, Twitter and Google, seeking to organize a mass exodus from those platforms to free-speech-friendly forums like Rumble, CloutHub and Parler while putting together funds to build a conservative infrastructure of mass data servers, new news media organizations and new social tools that fall beyond the reach of liberal censorship activists.

"We're just beginning, but the long-term solution to this for conservative is to build their own ecosystem that one day can rival what the left enjoys with Facebook, Twitter, YouTube and Amazon," said one major donor to conservative causes.

Whatever transpires with those efforts, an inevitable political seesaw is under way with liberals embracing new forms of censorship and conservatives decrying. The change in sentiments was on full display Saturday when convsertaive Nikki Haley compared Donald Trump's ejection from Twitter to the acts of Chinese Communists.

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