The Fight to Ban “Fighting Words”

Holly Bella
Oct 24, 2019 · 8 min read

In a recent New York Times Op-Ed piece, Free Speech is Killing Us, writer Andrew Marantz argues, “[n]oxious speech is causing tangible harm.” While he clearly fails to acknowledge that “noxious” words aren’t synonymous with “fighting words,” as defined by the Supreme Court, he’s speaking to an audience easily triggered by emotion, and likely ignorant of the reasons why the Supreme Court has repeatedly ruled that there is no hate speech exception to the First Amendment.

One might contend that such a subtle distinction in semantics is superfluous. But in the context of discussing why Big Tech poses dangers to free speech, this dissimilitude is important.

Though Marantz appropriately addresses the role of social media in support of his proposition, the true “threat” isn’t the use of words to “bully” or inflict what should be distinguished as emotional “harm” (i.e. insult) upon others; instead, what’s dangerous is the growing confusion as to what constitutes “threatening” speech — an assessment that should be made by our judiciary, not operators of Big Tech.

The author would like readers to believe that the current war on the First Amendment is somehow unique; a battle being perpetrated by social media armies led by CEO generals who have created a battlefield where user speech can be “designed to drive a woman out of her workplace or to bully a teenager into suicide or to drive a democracy of totalitarianism…” and memes are weaponry. Yet historically, free speech has frequently been under assault.

Long before the advent of the internet and online platforms, legacy media used its power to influence public opinion.

Under Operation Mockingbird, the Washington Post and the New York Times and others colluded with the CIA to circulate propaganda. The media network, under CIA Director Allen Dulles, influenced more than 25 media entities. These organizations were in turn managed by persons with liberal, pro-big-business and anti-Soviet views. The modus operandi of Operation Mockingbird was simple: publish content manufactured by the CIA, designed to manipulate public opinion regarding US-Soviet relations and the Vietnam War.

Arguably, while social media is merely a forum for users to exchange information and ideas and doesn’t create content, as Marantz rightfully points out, this digital medium has undeniably shaped how we access news and communicate with others. And, not unlike mainstream media that participated in Operation Mockingbird and thus not only curated news but controlled the actual content at the behest of the U.S. government, the transition towards social media affords those who operate these platforms a great deal of power over free speech.

For example, Mark Zuckerberg and his posse possess the power to decide which user accounts should be suspended and/or terminated. And because the social media marketplace is lacking comparable competition, this deplatformed user has no alternative to the monolith known as Facebook.

I’ll be the first to admit that the government should not allow Mark Zuckerberg and Sundar Pichai to serve as arbiters of truth. Allowing private entities such as Facebook, Inc. and Alphabet, Inc. to amass unfettered power over how Americans communicate and what Americans can talk about is undeniably dangerous. Lax antitrust regulation has contributed to the creation of a social media monopoly.

This lack of oversight has resulted in a Big Tech dictatorship over free speech in America. Where the Bill of Rights was established to prevent government control over speech, these private entities are creating a governing body that collectively is engaging in viewpoint discrimination. Frankly, censorship is equally as perilous as “noxious speech.”

But the danger of allowing Big Tech behemoths to oversee these digital forums isn’t merely limited to the spread of “hate speech” as Marantz points out; rather, the proliferation of Big Tech’s discriminatory practices poses a far greater threat to free speech. The purpose of limiting Big Tech’s control over the First Amendment should be to protect the rights of all Americans to free speech as long as such speech doesn’t violate legal precedent (i.e. doesn’t constitute “fighting words.”)

Courts should judge the definition of “fighting words” and application of standing law, not those who manage Facebook and Google.

To be clear, the Supreme Court has stated that the Constitution does not apply with regard to speech that “include[s] the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” (Chaplinsky v. New Hampshire (1942)) (Emphasis added.)

Simply put, determination of incendiary speech belongs solely under the jurisdiction of our Courts, not those self-appointed judges of Big Tech who’ve habitually perjured themselves before Congress as well as routinely lie to users when claiming personal data is “secure,” and that these platforms are operated sans human bias.

Permitting Big Tech CEOs to dictate what is “hate speech” when the Supreme Court has ruled that no such exception exists is one such example of how social media’s expanding role in limiting speech is peremptory.

In his article, Marantz makes a point of mentioning how Donald Trump and a host of killers have used social media to reach people. He infers that such users have relied on social media to disseminate hateful content. In particular, he laments how the Christchurch killer “…had used social media trying to advance the cause of white power.” But if the author wants to identify those users who pose a threat, perceived or real, to society, then isn’t it fair to address those Leftist-based individuals and groups promoting divisiveness? For instance, what about antifa, the radical group of domestic terrorists who regularly use social media to promote its violent rallies (riots) and solicit members? Whose social media posts depict acts of violence against “Fascists” and “neo-Nazis” and promote the ideology that one should use any means necessary to eradicate “White Supremacists”?

Furthermore, Marantz specifically names President Trump’s “social-media-fueled” campaign but omits discussion of members of the Democratic party who fuel racial and ethnic division? Ilhan Omar and Alexandria Ocasio-Cortez, for example, actively tweet about their ideological and political views. Both use Twitter to zealously attack President Trump’s character and policies on a regular basis. In fact, Omar was recently spotted at an antifa rally in Minnesota to protest against President Trump.

Hence, a member of Congress associates with a group known to not just utter “hateful” epithets and “fighting words” towards adversaries they claim are spreading hateful rhetoric (nothing like fighting hatred with hatred) but to initiate egregious acts of violence against others they oppose — also known as hate crimes — yet Marantz doesn’t find such to fit into the category of “morally bankrupt” behavior?

Committing a hate crime, an act that unequivocally would meet the “fighting words” standard, however, is permissible — so long as the perpetrator responsible for the utterance and/or activity isn’t a Conservative.

The content of Trump’s tweets is no more incendiary than Omar’s and Ocasio-Cortez’s; however, while Trump is constantly called out by mainstream media and anti-Trump supporters for his Twitter activity, there’s rarely an uproar when it comes to that of Democrats. Imagine if Trump was caught on video attending a Proud Boys rally? The wrath he’d face from his critics who’d likely respond by demanding all of his social media accounts be immediately terminated.

Kamala Harris is currently demanding that Twitter suspend President Trump’s account, asserting that his tweets pertaining to the Ukrainian whistleblower “appear[s] to violate the terms of the user agreement…” because they “target, harass, and attempt to out the whistleblower…” she doesn’t seem to take issue when it comes to her Democratic cohorts targeting the President with inflammatory rhetoric.

Additionally, the New Yorker staff writer whines to his audience that he has spent recent years as a reporter among “…the trolls and bigots and propagandists who are experts at converting fanatical memes into national policy…” suggesting that memes are somehow dangerous and created by morally reprehensible individuals.

Further, he continues, “I no longer have any doubt that the brutality that germinates on the internet can leap into the world of flesh and blood.” Again, does such dramatization of Marantz’s day-to-day social media activity include exposure to members of antifa, those whose reputation is based on targeting total strangers who possess differing viewpoints and commit assault and battery upon?

Moreover, this position neglects to consider that while the internet and social media can certainly arouse inflammatory speech, it does so in an isolated setting that is often time-delayed; meaning, unlike antifa, who instigate violence in real time crowd settings, digital forums aren’t considered “real space.” In a “real space” setting, an impassioned speaker uttering “fighting words” could easily trigger an audience, consequently morphing into a mob mentality where immediate violence ensues.

Despite the global reach of internet speech, inflammatory speech that could potentially produce a reactionary response is hindered by temporal and geographic factors. The statement: “I’m gonna kick the ass of the piece of shit cop who gave me a speeding ticket today” would likely be interpreted differently if stated in a tweet versus in-person, to the face of the officer being “threatened.” Furthermore, from behind a computer screen, intention is hard to calculate, knowing whether a speaker poses a physical threat; whereas in person, cues such as a speaker’s body language can be a clear indicator of a clear and present danger of immediate violence.

Notwithstanding the foregoing, Marantz’s premise that the use of social media to promote hatred and bias deserves serious consideration — I just disagree that words or text are the culprits per se.

Allowing private companies to discern whether user content is “dangerous” or “appropriate” is no different in theory than government-regulated speech in countries such as China. Big Tech’s pattern of arbitrarily enforcing terms of service or guidelines is precarious. The clear bias demonstrated by Facebook and Google via their respective exclusion of Conservative-leaning points of view sends a message to those whose political preferences vary from those of Leftists and the Democratic Party that they will be silenced.

And although these private companies are not subject to First Amendment laws, what should distress Americans is how these entities represent to the government and shareholders that these platforms are managed free of human bias; in reality, social media as a collective is suppressing speech based on partisan interests as if they are an extension of our political stratosphere.

Worse, this accumulation of power among a few — namely, Zuckerberg, Pichai and Dorsey — could result in the creation of Operation Mockingbird 2.0 — a situation where private companies possess the capability to assume the role of the CIA and enter into agreements with a struggling legacy media to ultimately monopolize what news and op-ed material will be accessible to users.

So, Mr. Marantz, the “killer” you’re referring to isn’t free speech; it’s the killing of free speech by a certain few who believe they should have ability to dictate to the public what dangerous speech is and therefore murdering the First Amendment. Furthermore, society as a whole has become hypersensitive to any terminology or reference that isn’t politically correct. We are compromising our individual speech by modifying the English language into a nomenclature of preferred pronouns and nondescript terms for fear that what we say might offend another.

We’re literally watching our words, to the detriment of our own self-expression.

If this trend of censorship continues, the First Amendment will all but become extinct. The death of free speech is being perpetrated by a fear of humanizing our ideas and thoughts, of expressing our opinions without fear of being verbally or physically attacked by those who disagree.

The end of self-expression is far more hazardous to human existence than those who claim climate change will destroy our planet in a decade’s time. Unless we fight to preserve this fundamental right, the fossilized remains of free speech will be buried deep in American soil along with the Founding Fathers who believed free speech was fundamental to freedom.

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Holly Bella

Written by

Attorney Wrangler. Writer. Photographer. Loves: dogs, music, vinyl, bourbon, guitars (Tele’s), the First Amendment, travel, books, law, tattoos, and the ocean.

The Startup

Medium's largest active publication, followed by +771K people. Follow to join our community.

Holly Bella

Written by

Attorney Wrangler. Writer. Photographer. Loves: dogs, music, vinyl, bourbon, guitars (Tele’s), the First Amendment, travel, books, law, tattoos, and the ocean.

The Startup

Medium's largest active publication, followed by +771K people. Follow to join our community.

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