For years, one of the primary ways that people experienced Donald Trump was through his tweets. All of that changed on January 8, when, in the aftermath of the capitol insurrection, Twitter banned @realDonaldTrump.
“Due to the ongoing tensions in the United States, and an uptick in the global conversation in regards to the people who violently stormed the Capitol on January 6, 2021, these two tweets must be read in the context of broader events in the country and the ways in which the President’s statements can be mobilized by different audiences, including to incite violence, as well as in the context of the pattern of behavior from this account in recent weeks,” read the statement, which included the text of the tweets. “After assessing the language in these Tweets against our Glorification of Violence policy, we have determined that these Tweets are in violation of the Glorification of Violence Policy and the user @realDonaldTrump should be immediately permanently suspended from the service.”
Twitter was not the only social media service to crack down on Trump. Snapchat banned him permanently. Facebook banned Trump's account through the remainder of his term and suggested it could ban "indefinitely." Last week, YouTube suspended Trump for a week because they said he violated a violence policy.
This flurry of tech moves has raised questions about free speech and left some Christians wondering how well their First Amendment rights will be protected in the midst of this.
John Inazu is a professor of law and religion at the Washington University Law School. He is the author of Confident Pluralism: Surviving and Thriving through Deep Difference and more recently, with Tim Keller, Uncommon Ground: Living Faithfully in a World of Difference.
Inazu joined global media manager Morgan Lee and editorial director Ted Olsen to discuss the complexity of defining “free speech,” what people misunderstand about the First Amendment, and the blind spots that Christians can have when advocating for free speech.
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Highlights from Quick to Listen: Episode 249
How do you see the difference between broad discussions of freedom of speech and the specificities of the US First Amendment protection of it?
John Inazu: We can make a distinction between norms and laws. The norms guide what our cultural views about speech and expression should be. They're going to be contextualized based on what country we're in. In the United States, we have certain free speech norms that will be different than Germany, for example, or other places in the world.
As far as the law, it is more particularized and more constrained in terms of what it can do. Pull up the text of the First Amendment and you'll be surprised at what it actually says.
The first few words are “Congress shall make no law.” It means that the First Amendment applies only to the federal government, not to state and local governments. That has changed and it now applies to the local police department and the local town halls. But it applies only to government, not to private actors.
This is what's called the “state action doctrine” and it has always been the case with some rare exceptions. The First Amendment is not going to restrict private entities from their own restrictions on free speech and expression. The First Amendment itself is a restriction on what people can do, people being government entities, and they may not restrict speech, but it does not say anything about private actors. That's an important distinction these days.
Is the conversation about free speech changing beyond governmental lines?
John Inazu: I find the UN aspirational language helpful, but not practical. “Speech and expression and opinions without interference.” What in the world does that mean? We can think of countless examples where speech is constrained for all kinds of reasons, whether it's peer pressure, social forces, private companies, or government. We all experience speech expression and dialogue subjectively. We have to be more modest in what we can actually restrict when it comes to speech.
Josh Hawley claimed that the publisher’s decision to cancel his book contract was “a direct assault on the First Amendment.” Does he have a point or is he over-inflating this grievance?
John Inazu: Not that much of a point there. Hawley’s misuse of the First Amendment is deliberate. It follows efforts he's made in the past to blur the lines toward private companies, especially the powerful social media corporations.
As a descriptive matter, this has nothing to do with the first amendment. More importantly, he knows it has nothing to do with the First Amendment. He clerked for Michael McConnell, one of the leading free speech experts in the country, so he knows the First Amendment. To go on social media and tell his constituents that a private book publisher canceling his book contract is a violation of the First Amendment is absolutely wrong and he knows it's wrong. That to me is disturbing both as a subject matter expert, but also as a fellow Christian.
Is incitement the same thing as the proverbial yelling fire in a crowded theater? What do we mean when we say this is speech that is not protected by the First Amendment?
John Inazu: First of all, lots of speech is functionally not protected by the First Amendment. Even though the text says “Congress shall make no law,” Congress and other government entities make lots of laws that directly restrict speech.
You cannot form a criminal conspiracy through words. You cannot perjure yourself on the witness stand. You cannot say words that engage in insider trading. There are lots of words spoken that are completely restricted by law. Nobody bats an eye at that. Those are not the hard cases, but they do illustrate that there are laws that restrict speech.
The more contested questions are the line drawing examples and areas. The incitement standard traces back to a 1969 decision, Brandenburg v. Ohio, where the Supreme Court said the First Amendment will not extend to imminent incitement to law-breaking. Two things are important about that standard: it's not just violence, it's lawbreaking. If I say, “Let's go trespass now,” even if no one gets hurt, that's not protected free speech because of the law-breaking standard.
But the imminency standard piece of it is also really important. If I incite someone to future lawbreaking, that is not under the Brandenburg standard of speech. Back to the Capitol riots, it's unclear to me whether any of the public figures we've seen are legally culpable under the standard of imminent incitement.
The closest we get is Rudy Giuliani talking about trial by combat, but even that is not going to reach the Brandenburg standard. What the president, Hawley, and others said strikes me as nowhere near imminent incitement to law-breaking. Now, morally and politically, should they be culpable for their words? Absolutely.
There are serious consequences to what they said, but I don't see them as legal consequences and they don't violate the imminent standard. The blurring of this imminent standard is what has squelched all kinds of protest and dissent movements throughout history, including as recently as this summer and when we saw the responses to the murder of George Floyd. If you hold the precursors to those actions legally culpable, you're going to squelch and inhibit important speech. It's not to defend the actual actors of violence, but it is to say we should be careful about extending that imminent standard.
People are incarcerated for participating in felony, including people who were several steps from the death. Are there examples where speech is being tied to murder?
John Inazu: I don't think so. Felony murder is a complicated and controversial doctrine. The prerequisite conditions are quite specific here. You have to have a predicate felony in which the actors are sufficiently linked in terms of proximity and causation to the subsequent death. It is saying that a homicide that would normally be punished as an unintentional homicide is going to be punished as intentional homicide.
It's elevating the degree of culpability to say, because the risk that you took in committing this felony was so great, it isn’t normal recklessness, but extreme recklessness that somebody could die. Your disregard for human life is such that we're going to hold you culpable at a higher standard.
Digital media is similar to newspapers of yesteryear, but it’s also its own beast when it comes to freedom of speech issues. How do these doctrines apply to digital media?
John Inazu: The Capitol insurrection was such a horrific threat to our basic democratic practices that it deserves a lot of attention on its own. On the other hand, these issues have been foreshadowed by what we've seen with social media. We think back to not only newspapers but also the other big cases of the 80s and 90s involving cable news and broadcast stations.
They're similar in the sometimes near-monopolistic capture of news information, or at least the conveyance of news and ideas. Where they're vastly different is in the technological and sociological means of transmission.
The cases that garnered the most attention and scrutiny in the 80s and 90s were cases where you had the local news, The Miami Herald, that dominated Miami's market. If you have something printed in that paper that takes on an issue or a person, does someone have a right to reply in that paper?
With broadcast news, the question is “Is there an equal time requirement for certain political ideas?” If you're going to give time to one side, then you have to give it to the other side. As you can see, similar kinds of issues happen on social media, where some of these companies dominate so much of the landscape. The scale here is so much more magnified.
Even though people have tried, you can't really start Twitter 2.0 or Facebook 2.0 and pretend like that's going to capture a sufficient part of the market. The other thing that I think is important to think about is how we communicate on these new platforms.
It used to be you would read or hear the news and it was one-way communication of information. You call into the show or write a letter to the editor, but that least has a lag time and is limited. Now, everyone's sharing everything. Everyone's commenting on everything else. There’s been this collapse of the line between news authority and news recipient, especially on the opinion side. It’s no longer the case that even granting space for a reply is going to make any difference. When bad tweets go viral, the corrections are a fraction of what their initial audience sees. We've got fundamental problems baked into the way we communicate online, none of which the law is going to solve.
Do community policies by these platforms and the First Amendment seem like fundamentally different approaches to speech?
John Inazu: In some cases, they're trying to come close to the First Amendment. For example, private universities are not subject to the First Amendment. They've had to figure out what is our own internal speech code going to look like.
Entities have been struggling with this question for a long time. I've done a lot of advising for private schools about their speech codes and whatever policy you come up with is going to say something very loud about what your values are.
What you choose to restrict is your choice and the same with what you choose to permit. Whether you make that explicit or not, it is going to reflect your values. It's going to reflect what you actually think is harmful, which you actually think is not harmful. What you think is, you know, on balance, better or worse in communication.
One of the reasons we have something close to an absolute First Amendment when it comes to viewpoint or ideology is we've learned the hard way through the law that it's difficult to walk back an all viewpoints allowed approach because once you start defining certain people or ideas as out of bounds, it becomes hard to draw a principled line.
How important is it for Christian organizations to defend controversial speech?
John Inazu: Principles like the First Amendment only work if they're for everybody. If you only argue for civil liberties and free speech when it's your own interests, it looks like special pleading and it doesn't support the Constitutional system that we have. The other point is that civil liberties and constitutional rights are always going to be claimed by those who aren't in power.
If you're in power, you're not going to need these rights because you make the laws. Even if you make a general law that affects you, you write an exemption for yourself into the law. That's how legislative bodies work. You don't really need civil liberties at the moment as much when you're in power.
It's the people who lack that political and legislative power who need these protections. When Christians find themselves in non-majority positions, they should be advocating for civil liberties. But when they find themselves in majority positions, they should also be advocating for constraints on their own thinking and robust protections for others.
When they are in political minorities, they advocate strongly for their own rights. When they dominate the local school board or the local municipality, they say, “No, it's our way only.” We're not going to allow these other viewpoints in. That's just flat out inconsistent.
In the 1990s, Congress enacted legislation called the Equal Access Act. It said if you're a public school and you open up your classroom space, you've got to open it up to all groups. You can't just say the groups we like. Two groups around the country that benefit from it: the Christian groups and the gay rights groups. In progressive school districts that didn't want the Christians in, the Christian groups were relied on that law, In conservative districts that didn't want the gay rights groups in, the gay rights groups relied on that law.
That's exactly how it should work. We need to talk about more of that instead of What's good for me is, is good for me, but I'm not going to extend those same privileges to you.
How do we settle in our own minds whether loving our neighbor should mean advocating for more or fewer restrictions on freedom?
John Inazu: Christians know how we're supposed to engage in our speech. We're supposed to speak truthfully but also lovingly and with compassion and kindness. Law and culture are both encouraging more outlandish and offensive forms of speech. As Christians, we should be marching to the beat of a different drum here.
What type of regulation does the government have with regards to social media right now? Is this something that you expect is going to change?
John Inazu: I’m not at all sure if it was the right decision to take off Trump’s accounts. As a personal matter, I was relieved not to have to read his nonsense anymore, but does it set a good precedent? I don't know. Simon and Schuster can pull Josh Hawley’s book contract, and it's just a contract dispute. There's no First Amendment issue there. Part of the problem here is you have a subjective experience of what counts as harm by private actors who aren't really accountable to anyone. The worldview of the people in the boardroom or the operations room at Facebook or Twitter is going to affect how communication happens in this country.
Let’s say someone writing a critique of transgender rights would have that book flagged or perhaps deplatformed from selling on Amazon. The argument would be that the words and arguments set out in this book are deeply harmful to transgender people. But lots of books out there cause siubjective harm to lots of people.
If you give power to private actors like Amazon to say, these are the things we find harmful that we're not going to carry, you've just given a lot of power to those decision-makers to also not publish the things that we don't find harmful.
Is the better approach to be more laissez-faire or is this something that you would advocate for trusting the government more?
John Inazu: The personal attacks, racial and sexual slurs, or demeaning comments or threats can effectively derail speech. Social media companies try to regulate and minimize some of those things.
Conceptually, some of our online communication can really chill speech, but it worries me a bit when we jumped to expand that category to basically to all speech we don't like or find offensive, which some people are doing right now.
What would the government do any better of a job? You would at least have more transparency and possibly accountability. You could have a governmental oversight board that is politically accountable that has to explain its decision-making and its processes.
I applaud the efforts of social media companies to move toward independent oversight boards. I just haven't seen how they function yet. What concerns me the most is how much power has been consolidated into these few companies. They are effectively controlling the marketplace of ideas today. The other concern is all of this is just reflecting who we already are. We're the ones who are putting this out and re-tweeting it, and paying attention to it, and letting it shape our hearts and minds and souls.
This includes Christians and non-Christians alike, and we're becoming who we already see reflected on social media. That's pretty unsettling.
Do you see a better solution to the rise of this kind of speech, both on the large corporate side and on the technological side?
John Inazu: A dialogue like the one we're having where we go back and forth and sharpen ideas presumes good-faith actors on both sides of the dialogue. The vast majority of speech and expression is not that.
In most cases, I don't think that more speech is going to remedy bad speech. A further confounding factor is that we have so much speech now that we're crowding out even the possibility of listening to the good speech.
This is tied also to the collapse of institutions and lessening respect for expertise. In some Christian circles, there are dangerous attempts to impugn experts. It becomes more a question of celebrity and trust the person who is witty on Twitter.
That's a bad recipe for trying to figure out how to resolve hard issues and how to persuade one another. That seems to be the direction that we're headed. I think Christians need to figure out how to cut through the noise, how to decrease their inputs, and how to focus more on a select few trusted inputs.
We need to be doing more about local authority and actual relationships, rather than relying on celebrity authority. Do you trust the leaders of those churches and if they're not trustworthy, how do we get different people in there?
How do localized relationships differ from the premise of social media?
John Inazu: The premise of social media does not account for either human fallibility or Christian virtue. There’s a way in which too much pluralism just capitulates into relativism. If we're just trying to always get all viewpoints and all ideas on the table, then we're actually doing nothing.
I don't think we need to pay any attention to people are saying things like you shouldn't wear masks or it's all a big lie. That’s just not true. It's deeply harmful for Christians and Christian organizations to be giving any attention or any platform to that kind of view in the name of unity or in the name of exploring ideas. How do you manifest that to a practical, local level?
A lot of people don't know who to trust right now. The ability to strengthen reputation and credibility can happen when groups of people and institutions come together and say we got to start trusting this group. I’m kind of frustrated with evangelicals for their unwillingness to cut ties with friends and neighbors who've just gone a bit nonsensical.
They're pretty quick to do it when it's on the left. When someone gets too progressive they’re pushed out of the conference circuit, or not getting book endorsements anymore. But when you look to the right, whether it's conspiracy theories about the pandemic or support for Trump's nationalism, there's a deep reticence to say we're going to cut ties with our friends here. I think we need to see more of that happening.
If harm and authority are helpful concepts when we're talking about community building, who should we include and who do we exclude in our institutions?
John Inazu: There are two different approaches here. One is we can distinguish between subjective harms. Harmful words spoken are almost always subjective. It's the way we work as human beings. It's difficult to approach subjective harms under the law.
Then, the question of whether more people are going to get COVID if you don't wear masks represents more of an objective harm. It doesn't matter what you say or how you experienced that. You're more likely to get the virus without masks.
In the First Amendment context, especially as Christians, it's okay to be wary of restricting words that cause subjective harm. I'm wary of laws that would restrict our ability to say things. But at the same time, we of all people should be leading the way to make our speech not subjectively harmful. Our fundamental call is for neighborly love.
What is Section 230? Why do some folks want it repealed?
John Inazu: Section 230 refers to a provision within the Communications Decency Act. And what it does is shield certain companies from potential liability to third-party postings of content. If you're an interactive computer service, you're basically a platform and people post their own videos and words on your platform.
Then you cannot be held liable under Section 230 for the contents of those posts or those videos. If you happen to be not just the content service, but become what's called an information content provider under the statute, then you could be liable if you're actually producing some of the stuff there.
The reason that people are pushing against that law is the liability shield it provides. The computer services mean that they can grow the revenue streams because they don't have to worry about that liability cost. Individuals will still be liable for posting something defamatory. Their potential for liability is much smaller than these big companies.
It's another example where the statutory structure is empowering these companies for both growth and also immunity, which is one of the reasons that people are targeting that provision and asking for reform.
Can you speak to our willingness to allow people to say offensive things and not responding in a way that turns up the temperature?
John Inazu: We should be able to absorb critiques, even unfair ones. When they're unfair or outlandish critiques, it's important to push back and to explain, but it rarely helps to do that as its own hot take.
Why do we feel compelled to respond in the moment? Can we take half a day before we write the snarky or the critical response back to our relative or our college classmate or whoever it is? Half the time after I see something that frustrates me in the moment, within half a day, I realize that life goes on. I don't need to respond to that. I think more patience and more ability to just not respond would be helpful for all of us.
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