More Dispatches From the Free-Speech Wars

(Bloomberg Opinion) -- SEQ CHAPTER \h \r 1This week’s “deplatforming” of Alex Jones and Infowars suggests that this might be a salutary moment for my latest dispatches from the free-speech wars, where there’s always more going on than you think. So, to press:The end of catcalling? Catcalling has recently been banned in France, and Robby Soave at Reason wonders whether similar efforts might be afoot in the U.S. He refers to a tweet from the American Civil Liberties Union — subsequently deleted — that pointed to the new French legislation and added, “Your move, America.”Here’s Soave:A U.S. ban on catcalling – defined as street harassment of women, usually by men, often of a sexual nature – would likely violate the First Amendment, unless the law was very narrowly tailored to prohibit only severe, pervasive, objectively offensive conduct, or threatening behavior. Even then the Supreme Court might strike it down. ... As obnoxious as catcalling is, the government simply can't prevent men from talking to women in public. This is something that many anti-catcalling groups understand explicitly, which is why they often oppose attempts criminalize such behavior.I consider catcalling vicious (to say nothing of rude), but Soave is right that an outright ban would be unconstitutional. We put up with lots of things in the public space that we would rather not, and some of them cause us pain. No matter how offensive we find what’s nowadays known as the N-word, for example, a blanket prohibition on uttering it would violate the First Amendment.This was just a tweet, and it hardly represents the official position of the ACLU. That’s a good thing, because, as Soave points out, supporters of a ban might not have considered sufficiently the targets it would likely hit: “In the U.S. at least, the government would disproportionately arrest poor people, immigrants, and people of color for catcalling.”Nazis and anonymity. A federal magistrate in California ruled this week that Discord, a chat app for video gamers, must disclose the true identity of an alleged alt-right sympathizer who has participated in its online activities under the disgusting pseudonym kristall.night. The decision came in response to the user’s effort to quash a subpoena from lawyers for the plaintiffs in a suit targeting the organizers of last year’s far-right rally in Charlottesville. The lawsuit claims that the organizers used the app to prepare for and perhaps seek violence. Jane Doe, as the user is called in the suit, argued that disclosure of her true identity would chill her right to engage in free speech. In particular, she worried about being “doxxed” for her views — that is, publicly identified, ridiculed and perhaps fired from her job. The court agreed that this might happen but ordered her identified anyway.It’s hornbook constitutional law that we have the right not only to speak but also, in most cases, to protect ourselves by speaking anonymously. In the Charlottesville case, the magistrate agreed that the messages Doe sent and received were protected from disclosure by federal statute but ruled that in these narrow circumstances, her right to protect her identity was outweighed by the plaintiffs’ need for the information. As to her concerns about being publicly identified, the court ordered the plaintiffs not to disclose the information.Alas, we don’t live in a world where nothing ever leaks. And we also shouldn’t pretend that we’re making a special law that will apply only to Nazis. It’s never just Nazis, as we know from … Infowars.Okay, so what about Alex Jones? On the banning of Infowars from multiple social media platforms, I have little to add to what I have said on this topic before. I continue to be impressed by the growing enthusiasm on the left for the exercise of corporate power toward political ends. I’m old enough to remember when progressives argued that corporations had no free-speech rights.As to the merits of the case, I will confess that I’ve never been sufficiently interested to look at anything created by Infowars, which by all accounts is an appalling project. Still, I’m nervous. I’d rest easier if the tech companies that essentially own today’s tools of popular expression came to see themselves explicitly as free-speech forums. To the extent that this means hosting a lot of offensive nonsense, it’s still offensive nonsense that everybody’s free to ignore. I predicted last year that efforts to cleanse offensive speech from the internet would not stop at Nazis. I doubt that they’ll stop at Infowars, either.Incidentally, there’s interesting polling data that the Infowars ban will doubtless reinforce. Here’s Pew Research, reporting the results of a survey released in June:Fully 85% of Republicans and Republican-leaning independents think it likely that social media sites intentionally censor political viewpoints, with 54% saying this is very likely.Overall, some 72 percent of U.S. respondents “think it likely that social media companies intentionally censor political viewpoints that those companies find objectionable.” So whether you think conservatives who complain of discrimination in the tech space are right or wrong, they’re certainly not alone in their beliefs.Guns and 3-D printing. Finally, back at Reason, Jacob Sullum argues that the effort to stop Cody Wilson’s controversial Defense Distributed private defense firm from offering 3-D printing templates for firearms violates the First Amendment. Sullum’s interesting argument rests on two crucial premises: First, that software is speech; second, that offering the templates for download over the internet is no different from offering them in a book.The question of whether software is speech was once hotly contested but nowadays is rather moot. To decide otherwise in an effort to stop Wilson would place at risk enormous investments in online speech. And not just corporate investments. Ordinary people rely on this freedom. My term project in a computer graphics course some years ago was to design a virtual pinball machine. To the world, the aesthetic value of my crude creation was probably negative; to me, it was art.Sullum is correct that the law treats online information the same way it treats information presented anywhere else. If Wilson’s project can be derailed because of its dangers, can we do the same for a diagram in a book? Whatever your views on 3-D printing of firearms, or gun control generally, the question’s a serious one.I trust you’ve noticed my bias. I’m rarely on the side of speech regulators. The power to control what others may say will inevitably be misused. That’s why our regard for free speech is measured by the protection we grant to words we hate.To contact the editor responsible for this story: Brooke Sample at bsample1@bloomberg.netThis column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his nonfiction includes “Civility.”©2018 Bloomberg L.P.-->

More Dispatches From the Free-Speech Wars

More Dispatches From the Free-Speech Wars

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More Dispatches From the Free-Speech Wars