We Are Far From Skokie:  Free Speech in Cyberspace

“I hate Illinois Nazis.”  – Jake Blues, The Blues Brothers (1980)

I think my first introduction to the complexities of living in a nation with a constitutional right like the First Amendment was in the 7th Grade. Our teacher had the class watch and discuss the film Skokie (1981), a dramatization of the circumstances surrounding the 1977 legal case National Socialist Party of America v. Village of Skokie.  At that time, a group of about 30-50 National Socialist Party members wanted to march, dressed in Nazi-style uniforms, through an Illinois village that was home not only to a large Jewish population, but to quite a number of Holocaust survivors.  Concern was reasonably high among state officials that the community’s promise to rally 12,000 to 15,000 counter-demonstrators would lead to violence.

After the Illinois district, appellate, and supreme courts upheld injunctions barring the Nazi group from marching, the U.S. Supreme Court ultimately held that the state courts had not afforded the petitioners proper appellate review when restricting protected First Amendment rights. Thus, the Nazis would be allowed to march.  As I remember it, the main civics lessons we discussed were that, of course, protecting the rights of free speech and peaceable assembly requires protecting the rights of even the most offensive speakers; but also, that a municipality’s concern that violence may result from an otherwise lawful protest is not grounds for prior restraint of First Amendment exercise. The ACLU defended the rights of the National Socialists in Skokie, just as it represented white-nationalists’ right to protest in Charlottesville a week ago.

Although granted a permit, the Nazi group in 1977 chose not to march in Skokie and instead held a rally in downtown Chicago. Ever since then, and until quite recently, gatherings of these and other hate groups have generally been marginalized. Their speech has been protected, ignored, and mocked. Groups like the KKK would set up their flags, don their ridiculous sheets, spew garbage into megaphones that nobody would bother listening to; and then they’d pack up their impotent little circuses and go home. The “Illinois Nazis” were satirized in the 1980 comedy The Blues Brothers; and that was about as worked-up as we needed to get for the better part of the last four decades. But now, it seems we are far from Skokie.

In response to events in Charlottesville—though clearly Boston was a very different affair—it is possible that state and municipal lawmakers may try to re-legislate the meaning of “inciting violence” when it comes to issuing permits for groups claiming their intention to peaceably assemble. For instance, common sense might suggest that a large crowd showing up with firearms, or weapons of any kind, means that the proposed assembly is not “peaceable.” Thus, city officials should be allowed, with respect to the Constitution, to make reasonable decisions as to what risks they consider tolerable for their police officers to manage.

But that’s physical space. And there is probably a fair body of precedent law upon which city and state legislators can build, if they feel the need to strike a new balance between public safety and the First Amendment relative to a new and more dangerous climate.  But what about cyberspace?

If we set aside the hot-button topic of the president’s tacit endorsements of these groups, the most significant catalyst in amplifying previously-marginalized and fragmented hate-groups into large, gun-wielding mobs has got to be the internet. The internet connects people, right? Except the utopians and dreamers usually talk as though it only connects decent people—or even more naively, that the connection itself is the path toward newfound empathy for one another, which should moderate hatred and division. This can be true, but the opposite results are also plainly manifest.

It turns out the internet is a fertile breeding ground for hatred and division. Anyone can create a platform that connects people whose primary common interest may be hatred of other groups. And it’s not always as blatant as white nationalists hating Jews, people of color, homosexuals, etc. It may even be subdivisions among Jews, people of color, homosexuals, etc. hating on one another, which may be why our political process seems overly bogged down by tribal infighting along lines of identity rather than policies of inclusion—or at least tolerance. The internet seethes with conflicts of egocentrism; and I think it’s fair to say that the web is the ideal intersection for a bunch of misguided, chino-wearing, Tiki-torch-carrying college boys to find common cause with actual flag-waving Nazis trying to provoke a race war.

As was widely reported, events in Charlottesville led GoDaddy to finally boot the Nazi-themed site The Daily Stormer off its hosting servers. The site was then denied hosting by Google, kicked out of Cloudflare’s anonymizing service, refused hosting by other OSPs, and has now allegedly migrated to the dark web. No doubt, many people who were outraged by last weekend’s tragic events applauded these decisions to remove The Daily Stormer from the mainstream; but they were also followed up by notes of concern over the protection of free speech online. As the presumptive ACLU of the internet, the Electronic Frontier Foundation unsurprisingly took the position that speech must never be censored by these private platforms.  In a blog post, the EFF states…

“We at EFF defend the right of anyone to choose what speech they provide online; platforms have a First Amendment right to decide what speech does and does not appear on their platforms. That’s what laws like CDA 230 in the United States enable and protect. 

But we strongly believe that what GoDaddy, Google, and Cloudflare did here was dangerous. That’s because, even when the facts are the most vile, we must remain vigilant when platforms exercise these rights. Because Internet intermediaries, especially those with few competitors, control so much online speech, the consequences of their decisions have far-reaching impacts on speech around the world.”

Yes, the language itself is contradictory and equivocal (i.e. sites should have these rights but not exercise them), but there is no denying that the EFF is highlighting the unprecedented challenge we face with regard to the web and speech. On the one hand, private entities do not have the same constitutional obligations as the state; but this legal technicality does not reconcile the fact that a company the size of Google plays an outsized role in facilitating the means of all speech—from the vile to the profound—in the manner that speech is now conducted. Just like the ACLU defended the Nazis in Skokie—because the principle must be upheld if we are to protect other voices like civil rights leaders—the EFF argues the same rule applies in cyberspace. Allowing OSPs and edge providers to censor speech based on business decisions—and this could include government pressure—is potentially hazardous.

Conversely, these concerns contain a lot of overwrought hypocrisy in which the apparent speech defense masks—and even exacerbates—the larger problem. Because it is the combination of free-speech maximalism and “safe harbor” absolutism, with regard to internet policy, that has produced an oligopoly that now owns the primary conduits of speech itself.  That’s the real danger.  Or as my colleague, Mike Katell puts it

“We have left the barn door open and allowed Silicon Valley to move the popular venues of expression from the community stage and the city street to their proprietary platforms, where they are guided not by constitutional or democratic principles but by terms-of-service strategically designed to maximize profits and offset risk.”

The internet industry, with the help of organizations like the EFF, has consistently swept a million sins (i.e. criminal conduct) under the rug of free speech—not as a matter of principle, but as a matter of revenue growth and competition for market-share. The major platforms manipulate speech all the time in the service of their business interests; and last week, it suddenly became bad for business to host The Daily Stormer. So what does this mean for speech?  Not much I think.

In a world in which private speech on public platforms has ballooned to trillions of interactions per day, the logic of slippery slopes toward censorship must be considered in context to this scale. If The Daily Stormer dies, speech lives. If sites or pages hosting terrorist propaganda are denied service, speech lives. If sites hosting copyright infringing content, selling counterfeit goods, facilitating trafficking, or any other criminal activity are shut down, speech lives. Just like in physical space.

This is to say nothing of the fact that the great, cosmic explosion of speech hasn’t really done democratic principles any favors. As a conveyance of knowledge (that magic ingredient meant to make people more compassionate), the internet also has the capacity to transform reality itself—even documented history—into a choose-your-own-adventure game. Then, because the internet connects people, some ten-thousand flat-earth, tinfoil-hat, conspiracy-theory whack-jobs are no longer dispersed innocuously around the country but will instead coalesce into a tribe that meets daily on TooStupidToBreathe.com. And the next thing we know, they’re a movement requesting a permit to rally in a city park.

As I’ve indicated many times, when the internet activists rush to defend speech in high-profile instances like The Daily Stormer, they consistently overlook a truth that we need to accept:  that laissez-faire internet policies on controlling content has produced—and will always produce—a society where bullies trample speech in ugly and even physically dangerous ways. This cognitive dissonance is reflected in Cloudflare’s wringing its hands over terminating The Daily Stormer account.  In a blog post on the matter, CEO Matthew Prince writes…

“Someone on our team asked after I announced we were going to terminate the Daily Stormer: “Is this the day the Internet dies?” He was half joking, but only half. He’s no fan of the Daily Stormer or sites like it. But he does realize the risks of a company like Cloudflare getting into content policing.”

Maybe they’re trying to answer the wrong question—an immature question. Because I think the answer is no, it’s not the day the “internet dies,” but maybe it’s the day our bullshit, utopian idea of the internet dies. And that’s not a bad thing. Because utopianism is the product of an immature assumption that bad people don’t exist, only bad systems do.  That’s why utopias are always one step away from dystopias. In this regard, not only do OSPs have a right to not facilitate hate, violence, or crime; but it is probably time for the internet industry to accept that taking such action is actually a responsibility for which they need not apologize.

In a broader context, I do not wholly reject the concerns raised by the EFF in this case; but as a matter of policy, I also believe we cannot effectively have this particular debate as though it were a Skokie-era issue. That is simply not the world we inhabit anymore. The internet’s unique capacity to catalyze anti-democratic views, even violent and hate-filled ones that would destroy the First Amendment itself, should factor into the equation when discussing the service providers’ role in protecting speech.

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