The Washington Post reports that “House Democrats plan to grill Facebook and Google next week on their efforts to stop the spread of white nationalism and hate speech online.” In essence, the House of Representatives is pressuring them to censor constitutionally protected speech. Hate speech is protected by the First Amendment online. The Supreme Court struck down a hate-speech ordinance in 1992, in R.A.V. v. St. Paul. That same year, it made clear that white nationalism is also protected speech, in Forsyth County v. Nationalist Movement. In that decision, it ruled that a white nationalist group could not be charged more money for a parade permit despite the inflammatory nature of its speech. Speech on the internet is protected to the fullest under the First Amendment, as the Supreme Court ruled in Reno v. ACLU (1997).
As Kevin Bankston notes, “white nationalism is abhorrent [sic], but it is very troubling to have a Congressional hearing that could basically be retitled ‘how can Congress pressure social media companies to take down more legal speech that it could never legally censor itself.'” The pressure is real, because social media companies know that an angry Congress could easily subject them to ruinous lawsuits just by repealing Section 230 of the Communications Decency Act, as some in Congress have publicly pondered doing. As the Los Angeles Times notes, the liability shield in Section 230 literally “created the internet” as we know it today.
The First Amendment says that “Congress shall make no law … abridging the freedom of speech.” But the courts interpret it as banning not just laws against speech, but also informal government pressure to restrict speech, under Supreme Court rulings such as Bantam Books v. Sullivan (1963). Government officials are not supposed to pressure private entities to restrict the speech of citizens in their publications or mediums of communication. The First Amendment was thus violated when a government official pressured a local chamber of commerce to not run ads from a particular businessman in its publication — as a federal appeals court ruled in 1991 in Rattner v. Netburn.
Facebook and Google are not, of course, bound by the First Amendment. But neither was the local chamber of commerce that was unconstitutionally pressured to restrict the speech of a user in Rattner v. Netburn. The chamber was a private entity not subject to the First Amendment, but that did not mean that government officials could conscript it to restrict speech it would otherwise choose to tolerate. Private entities can choose to exclude speech protected by the First Amendment from their forums, but the government cannot compel them to do so.
Facebook already bans hate speech and white nationalism, but it doesn’t ban enough content to appease some progressives. Its content restrictions have not appeased those critics, who say that, in practice, it has failed to define white nationalism broadly enough. Some progressives define “white nationalism” so broadly as to include ordinary political disagreements with progressive positions about how to address racial issues.
Left to its own devices, Facebook would probably not define “hate speech” very broadly, for purposes of what content it chooses to block. But under pressure from progressive Congressional leaders, that may change, leading to Facebook blocking a lot more content.
Progressives often have very expansive definitions of “hate speech,” or define discriminatory “harassment” in ways that reach a lot of constitutionally protected speech. Under campus racial and sexual harassment codes, students have been investigated “for expressing commonplace views about racial or sexual subjects, such as criticizing feminism, affirmative action, sexual harassment regulations, homosexuality, gay marriage, or transgender rights, or discussing the alleged racism of the criminal justice system.” The federal appeals court in Philadelphia struck down campus harassment codes in challenges brought by conservatives who harbored the belief that homosexuality is a sin, and that women do not belong in combat. (See Saxe v. State College Area School District (2001) and DeJohn v. Temple University (2008)).
Left-wing groups have a tendency to label people they dislike as white nationalists even when they are not, and even when they do not believe in white separatism or white supremacy. A conservative-leaning think-tank scholar who has a non-white wife and two mixed-race children reportedly had to flee a college campus for his own safety after he was labeled a white supremacist by the Southern Poverty Law Center, the slur even being repeated by some in the media. He had to flee an angry mob in an incident that reportedly left a professor accompanying him with whiplash and a concussion.
Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department.
Editor's Note: This piece was originally published by Liberty Unyielding and was reprinted with permission from the author.