Let’s make something clear out of the gate: I don’t like Alex Jones.
I haven’t liked him for a long, long time. I don’t have any use for his conspiracy theories. I don’t have any use for his diet supplements. I hope he loses his lawsuit against the families of Sandy Hook. (I don’t know whether he legally deserves to lose, but he karmically deserves to.) His continued insistence on calling himself a “paleoconservative libertarian” (a contradiction in terms) and his active support for Ron Paul’s campaigns in 2008 and 2012 motivated me to become more active in the Libertarian Party, because I was not about to let the cause of social and economic freedom be represented by his delusional, angry, hate-filled ilk without a fight.
Speaking of, in the unlikely event an Alex Jones fan is reading this op-ed, it is my knowledgeable political opinion, based on more than a decade of public activism and two runs for public office, that your political home is in the Republican Party as the heart of President Trump’s base — but you already knew that. I strongly recommend that you continue your efforts to, um, improve the Republican Party from the inside and continue to support candidates who best capture the gestalt of the current administration. Your efforts to strengthen the Republican Party are truly a service to a country, possibly even this one. Thank you. Really.
Now, as I was saying, I really have no use for Jones, his schtick, or his audience. Naturally, when I learned he was banned from Facebook, YouTube, and even Twitter (if only temporarily), I inwardly smiled and thanked the Germans for having the best words, because schadenfreude is absolutely how I feel about his current predicament. It also amused me to no end to see one of the Infowars reporters claim, and I quote:
That, of course, is not how the Constitution is applied to publicly traded companies, and for a very good reason: The Constitution’s role is to define and limit the powers of government, not the role of the public or publicly traded corporations. The government is most certainly not equivalent to the public, constitutionally or legally, and bad things with guillotines can happen when people start conflating the two.
Millie’s post, however, illustrative of the tension between freedom of speech and freedom of association, as well as our collective understanding of both of them. When it comes to freedom of speech, according to a recent Ipsos study, 85 percent of Americans agree that the “Freedom of the press is essential for American democracy” — and yet 26 percent of Americans, nearly double the 15 percent that don’t agree freedom of the press is essential, believe “the president should have the authority to close news outlets engaged in bad behavior.” (Forty-three percent of the Republicans surveyed, by the way, belonged to that 26 percent, which even caught Fox News’ attention, though it really shouldn’t have. As much as conservatives love to talk about the Constitution and the protections it provides, to quote criminal defense attorney and free speech advocate Ken White in a recent Reason interview, “Saying that the First Amendment is conservative is historically completely illiterate. It’s [protected] mostly progressives from being suppressed through most of the twentieth century.”)
Put more succinctly, Sen. Joseph McCarthy was a Republican.
That said, while some conservatives might be a bit more willing than others to wrong-headedly use the government to enforce various speech codes, certain liberals are quite enthusiastic about leveraging freedom of association to silence those they don’t like, either. For example, Brendan Eich, the former CEO of Mozilla (the makers of the free Firefox web browser), was forced to step down in 2014 because his vocal opposition of gay marriage led to a public boycott against the company. After the white supremacist rally in Charlottesville last year, liberals worked together to identify the protesters and notify their employers of their activities; unsurprisingly, many of the protesters lost their jobs. More recently, Airbnb, Lyft, and Uber allowed their services to be denied to “Unite the Right” marchers in Washington, D.C. Of course, leveraging the power of public opinion and private businesses to deplatform dislikable individuals is a game conservatives can play, too, as James Gunn learned the hard way. Naturally, those on the receiving end aren’t particularly thrilled, whether they’re Alex Jones fans, a Venezuelan television network, or Libertarians reposting news reports about adults threatening a 12-year-old transgender student, and they’re asking questions:
Personally, I think they’re missing the forest for the trees.
Our current understanding of freedom of speech is actually a relatively modern invention. As originally written, the First Amendment only prohibited Congress from making laws that abridged the freedoms of speech, press, or assembly. State and local governments, per the Tenth Amendment, still could and routinely did limit some speech. This power was affirmed in Barron v. Baltimore in 1833, and was well-exercised through the modern era. Maryland and New York, for example, created state licensing boards to review movies for obscenity in the early 20th century that served for decades. Chicago, meanwhile, was one of the first cities to censor movies.
Nevada, as we so often do, served as an inspiration for the rest of the country. As the only state with legal boxing in the 1890s, a filming of “The Fight of the Century” in Carson City in 1897 inspired the first state-based film censorship laws so states could “protect” their citizens from seeing prizefighting on the silver screen, as well as in person. These censorship laws and boards were officially protected when in 1915, the Supreme Court unanimously decided, in Mutual Film Corp. v. Industrial Commission of Ohio, “We cannot regard [the censorship of movies] as beyond the power of government.”
This standard didn’t start to change until 1925. Before one of the ACLU’s first court victories, states didn’t just censor movies. They censored the written and spoken word as well. In Gitlow v. New York, however, the Supreme Court decided that the Due Process Clause of the Fourteenth Amendment meant that state governments, not just the federal government, had to respect the Bill of Rights, too, including the First Amendment. Even so, it wasn’t until Joseph Burstyn, Inc. v. Wilson in 1952 that the Supreme Court decided movies were protected by the First Amendment, and it wasn’t until Brandenburg v. Ohio in 1969 that speech, even politically inflammatory speech, was protected as well.
Even today, despite Brandenburg v. Ohio’s implicit overturning of laws prohibiting advocacy of political violence, Nevada still has a pair of laws, NRS 203.115 and NRS 203.117, that make it a felony to advocate for criminal anarchy (“the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means”) or criminal syndicalism (“the doctrine which advocates or teaches crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform”). Those statutes, by the way, were last amended in 1995.
So, even the seemingly simple question of whether the government has the power to regulate speech in the United States — the answer to which we all learn in grade school is a simple “no” — is not so clear-cut, and was an emphatic “yes” as recent as a century ago. And as our laws are frequently a reflection — a dim, delayed reflection, but a reflection nonetheless — of the attitudes of the society they are meant to govern, it’s not so surprising that we’re still unsure about whether people really should have the right to say whatever they want to say.
When it comes to freedom of association, meanwhile, we have historically been far less charitable. Jim Crow laws, such as the ones that were in place in Nevada into the 1960s and earned us the unfortunate sobriquet of “Mississippi of the West,” actively required businesses to refuse to associate with African-Americans. Further back in American history, Oregon’s Black Exclusion Laws explicitly prohibited African-Americans from moving to Oregon, even if an Oregon landowner wanted to rent or sell to one. Freedom of association wasn’t just restricted against racial minorities. The Communist Control Act of 1954 outlawed the Communist Party of the United States, and criminal syndicalism laws like NRS 203.117 were originally designed to target the Industrial Workers of the World, a militant union with an interesting Nevada footnote: They helped organize a strike during the construction of Boulder Dam in 1931.
Since the 1960s, laws governing the freedom of association — the freedom to decide who we will voluntarily assemble with, do business with, and otherwise spend time with — have largely sought to undo some of the worst excesses of our past, with mixed results. Where in the past discrimination against people because of race, color, religion, sex or national origin was in many cases mandated by law, the Civil Rights Act of 1964 abolished such laws and theoretically prohibited such discrimination. At the state level, in 1999, Nevada added sexual orientation to the list, and in 2011, the state added gender identity and expression as well. Consequently, where the law previously told you who you could and could not bake a cake for, now the law compels you to bake a cake for anyone, unless you’re refusing to bake a cake for religious reasons, in which case you might still have to bake the cake, but the people responsible for telling you that you must aren’t allowed to make fun of your religion while doing so.
Clear as mud?
That’s a shame, because freedom of association is arguably the most important freedom on the Internet. If we’re not free to, as XKCD puts it, “show the door”, we’re going to be inundated with all of the commercial spam and hateful bile that scripters, bored teenagers, and lonely, grumpy retirees can shovel at us. Those of us who used the Internet in earlier years remember what that was like. If you’d like a refresher, the dream of the ‘90s comments section is, of course, still alive on YouTube. When companies like Facebook, Twitter, and even Microsoft decide they’d rather not provide a platform for somebody, they’re well within their rights to do so, and the relative popularity of places like Reddit over Voat strongly suggests that they do so because that’s what most of us want.
On the other hand, companies such as Facebook, Twitter, Google, Amazon, Paypal, and Microsoft are far bigger presences on the Internet than people thought they would be a decade or two ago. If I wanted to share this op-ed with my friends, I’d be in trouble if Google didn’t like the content since they’re hosting my email and, well, the website of The Nevada Independent. What if I wanted to put it in a book and sell it? Without Amazon, how large of an audience would I reach? What if Paypal and other credit card processors decided they didn’t want my money — a problem that’s still ongoing in the world’s oldest profession? Without Facebook or Twitter, how do I even begin to reach a majority of the Internet’s users? As Scott Alexander put it:
If every company in the world decided that their profit margin required them to appear Tough On Homosexuality, it wouldn’t just mean no mass media editorials. Insofar as a lot of the public square has been annexed by Facebook and Twitter and Reddit, the discussion can be kept out of the public square in a way it couldn’t have been previously. Insofar as the economy relies on PayPal and Amazon as a currency system and marketplace respectively, companies can just decide that currency cannot be used to support gay rights, in much the same way that for a while currency could not be used to support WikiLeaks. The nuclear option is that Google decides not to show gay-related sites in its search results, so that you could make as many persuasive arguments for legalizing homosexuality as you want and no one would ever find them unless you knock on their door and hand them the URL directly.
The truth is that transparency and tolerance are both key — and they are key for all of us, individually and collectively.
Transparency is key because a marketplace of ideas, one where people can decide whether to do business with a bigot or not, or do business with someone who does business with bigots, is only possible when we know who these people are. Per James Peron, who put it compellingly:
Consider a holier-than-thou motel owner who rented a room to a gay couple over the Internet but then refused them entry when they arrived. This couple had travelled a distance to be there, they forewent other motels and hotels along the way. They booked in advance and were not forced to search at the last minute, at significantly higher prices, for an alternative.
The motel owner knew he was a bigot. He knew he would reject people without warning and after he inflicted costs in various senses upon them. Why didn’t he simply let them know what his “terms of service” were? Because he didn’t want all his customers knowing he’s a bigot. He’d lose too much money.
What he is trying to do is take the cost of his prejudices and impose them on unwilling, innocent third parties. He indulges in his hate because others pay the price for it. He’s being subsidized in a broad, but real sense.
He knows if he said, “NO gay allowed,” he’d lose the gay clients, but he doesn’t care about them. On the other hand he wants to bamboozled (sic) others into using her motel who, had they been fully informed of his policies, would have gone elsewhere.
In other words, if businesses are allowed to pick and choose who they do business with — and I personally think they should be because nobody should have to do business with Alex Jones if they don’t want to — they should also be open, honest, and upfront about who they will choose to do business with so the rest of us can decide for ourselves whether to do business with them in turn. Ideally, that doesn’t mean byzantine terms of service. If “no opinionated op-ed writers allowed on the premises” is buried in, say, Section 4 – Additional Provisions, instead of just hidden entirely, it still doesn’t do me much good.
Tolerance, however, must also be key, though it’s important that, as Bleeding Heart Libertarians describes it, we view toleration as a public good. That means we should apply the Golden Rule and try, as best as we can, to be as tolerant of those we disagree with, just as we want to be tolerated ourselves. It also crucially means that, no matter how good it feels to signal our loyalty to our in-groups by adopting stronger, more extreme, more “pure” versions of our groups’ beliefs, we have to avoid that temptation.
The reason Steve Bannon had any popularity to begin with, and the reason Chapo Trap House is presently gaining popularity, is because they speak to that satisfying dopamine surge that occurs when you demonstrate that you’re just a little bit more in the group than everyone else. Of course, it also helps to avoid the temptation to paint anyone to the right of Chris Giunchigliani as a fascist and anyone to the left of Michelle Fiore as a socialist.
Unless it’s true.
Well – duty calls.
David Colborne has been active in the Libertarian Party for two decades. During that time, he has blogged intermittently on his personal blog, as well as the Libertarian Party of Nevada blog, and ran for office twice as a Libertarian candidate. He serves on the Executive Committee for both his state and county Libertarian Party chapters. He is the father of two sons and an IT professional. You can follow him on Twitter @ElectDavidC or email him at firstname.lastname@example.org.