The Radical Center
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The Radical Center

Trump’s Free Speech Was Not Violated

The banning of America’s worst president from social media has all sorts of confused debates going on. Most of them shout “censorship” or “free speech” without ever defining their terms, but the implications of their arguments implies they have, at best, a confused understanding of the terms. To “prove” their case they make analogies that simply don’t fit the argument. Typically what I’m hearing is people using popular social myths about issues and trying to use these myths as a foundation for a legal claim.

To understand censorship we must first understand what the right to free speech encompasses. In the classical liberal theories of the Founders rights were not claims on others, but limits set on what others could, or could not do to you. That is, the right to property didn’t mean others were obligated to give you a house, or hand you a car — or a horse back in 1789. It meant there was no right for a stranger to walk up and steal your house, or take your horse without your permission.

Similarly, freedom of religion — which is covered under the First Amendment, as is speech — didn’t obligate people to build you a church, or allow you take control of the pulpit in their church. It just means you are free to believe what you wish, practice it as you see fit — restrained by the equal rights of others — use your own pulpit if you so wish, etc.

Rights meant others could not take something away from you but it did not obligate them to give you anything. When others are obligated to surrender their own rights or property to you, you are not asserting a “right” but claiming a privilege. Of course, privilege claiming is widespread and practiced on all sides today, not just by white supremacists.

Now, rights are exercised within a physical universe. They are not ethereal and supernatural. To express your views you need physical objects. If you speak you are speaking from a location, if you publish your opinion, you are required to use presses or copiers, inks, paper, etc. If you do so online you are using media outlets or platforms to publish them.

Once we move to the physical realm it means you have to use property in order to express yourself and the question to answer is: “Whose property?”

You have a right to stand up in your living room and say what you wish. You don’t have the right to invade my living room to engage in similar diatribes. You may publish any book you wish, but you can’t require me to do the printing. Your right to speech ends where my rights begin. Ayn Rand put it this way:

Freedom of … does not mean the right to demand the financial support or the material means to express your views at the expense of other men who may not wish to support you. Freedom of speech includes the freedom not to agree, not to listen and not to support one’s own antagonists. A “right” does not include the material implementation of that right by other men; it includes only the freedom to earn that implementation by one’s own effort.

I would define the right to free speech as “The right of all to say or express any opinion they wish, verbally or symbolically, with the use of any resource they own or those made freely available to them by others.” You have a right to publish a book but you only have the right to use my printing press if I grant it. You may preach if you want, but not with a lectern you steal. It really is similar to sexual freedom in that regard. You have the right to engage in sex but anyone else involved must consent. Without consent it isn’t a right to sex, but rape.

WHAT THEN IS CENSORSHIP?

Censorship is any act using force or the threat of force to prevent your speech. This may be direct as in threatening you with violence, or indirect, such as destroying the printing press you use.

Here is one area where I depart from what Rand said about the issue. She said:

“Censorship” is a term pertaining only to governmental action. No private action is censorship. No private individual or agency can silence a man or suppress a publication; only the government can do so. The freedom of speech of private individuals includes the right not to agree, not to listen and not to finance one’s own antagonists.

Private groups routinely censored in that they used force or the threat of force to prevent speech they didn’t like. Some advocates have been murdered to stop them from speaking; printing presses have been blown up. True, government usually is behind censorship and cloaks it under the legitimacy of law, but there is no shortage of private incidents as well.

Famed black journalist Ida Wells published the Memphis Free Speech newspaper and published an article denouncing a lynching of three black men by white mobs — it was too early in history for them to have little red MAGA hats at the time. The Daily Commercial played the role of Trump and riled up the mob claiming that only white patience “allowed” Wells “to live,” “ But we’ve had enough of it.”

A mob attacked the Free Speech offices in 1892 tdestroying everything and issuing threats against Wells — much as the MAGA mob did toward Pelosi and Pence. Wells was never to return to Memphis again.

In Nauvoo, Illinois, in 1844, the first and only issue of the Nauvoo Expositor was published denouncing the doctrines and actions of Mormon leader Joseph Smith. Nauvoo, at the time, was the center of Smith’s sect. Breakaway Mormons published the newspaper and were upset about polygamy; a practice Smith repeatedly denied was happening even as he took multiple lives.

Smith, the “mayor” of the sect-run town, denounced the paper, with the support of his city council, ordered the violent destruction of the press and every copy of the newspaper. Smith was then arrested and charged with committing “a riot at and within the county aforesaid, wherein they, with force and violence broke into the office of the Nauvoo Expositor, and unlawfully and with force burned and destroyed the printing press.”

While Smith was awaiting trial in jail an angry mob attacked the building and shot Smith to death.

Rand referred to the “old fashioned” definition of censorship but didn’t go in details, perhaps clarity there would change how I see her position — that is, it may be a specific use the word “censorship” which I’m not clear on. Until then I shall continue to see what was done to The Memphis Free Speech and the Nauvoo Expositor as much the use of censorship as if done by the state.

Certainly, today, we are seeing attempts by the Maga Mob to intimidate any one who speaks out in opposition of Trump’s tyrannical ambitions. One such incident, out of many, was CNN’s Jim Acosta, inundated with death threats by the Maga Mob not liking his reports about Trump. The Washington Post reported:

As death threats poured in during the days before the 2018 midterm elections, Acosta began speaking with the FBI and police detectives who were investigating the threats, and discussing whether to wear a bulletproof vest at Trump rallies. CNN gave him round-the-clock protection.

On one occasion they tried to get him executed by cop by “swatting” him. An anonymous complaint was made to local police saying a violent incident was happening at Acosta’s address and a SWAT team of police, with weapons drawn, descended on, and invaded the home. This form of harassment has lead directly to the death by cop of a number of innocent people.

WHAT ABOUT THE FIRST AMENDMENT?

The Bill of Rights is about government/citizen relationship not about citizen/citizen relationships. The Freedom Forum Institute put it this way:

The Bill of Rights provides protection for individual liberty from actions by government officials. This is called the state-action doctrine. Private property is not government-owned. Restrictions on individuals’ free-speech rights on private property do not involve state action.

At first this Amendment was widely assumed to apply only to federal action. But early on many courts started arguing the Bill of Rights applied to government at all levels. This debate was firmly ended with the 14th Amendment which explicitly said, in part:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

BAD AND BOGUS COMPARISONS

A great number of well-meaning libertarians, defending the right of companies to ban Trump from their platforms, are doing so using the freedom of association analogy. But this is a bad comparison to make. Ultimately I do not see this as a freedom of association issue but one of contract law.

The favorite comparison seems to be to the two — and only two — legal incidents about discrimination over wedding cakes. But the cases are dramatically different.

The typical social media platform has terms of service. Some may be badly written, inconsistently applied, or difficult to figure out — Facebook’s pathetic use of bots to police the pages is a great example of this being done very badly — but they actually do exist.

However, one area that is typically very clear is they forbid the use of their platform to threaten violence or promote violence. That is usually clearly stated. Trump was removed from these sites because of his encouraging an armed insurrection in the United States directly leading to the attack on the Capitol, where rabid Maga Mobs ran through the halls, vandalizing, stealing, and threatening murder — if they could find their intended targets.

Trump used these platforms to create a violent incident that meant people died and the Capitol was under siege by armed thugs — a coalition of Jesus addicted evangelicals, White supremacists and country bumpkins who had no clue why they were there but to “Stop the Steal.”

In neither of the two bakery incidents did bakers tell customers they had terms of service in order to buy a cake. There was never a First Amendment claim as no baker anywhere in the U.S. can be required to write specific words on a cake. Anti-discrimination laws, which are more widely used by evangelicals and other religious types than by LGBT individuals, were involved. Oddly throughout that debate evangelicals repeatedly used the laws and the very groups “defending” the bakers were elsewhere trying to sue companies they said discriminated against Christians, even when they acted in violation of written employment policies.

So, there are two big differences: the terms of service and the issue of discrimination. In Trump’s case no one targeted him because he was a man, or because of his race, his alleged religion, his political affiliation or anything else covered by discrimination laws. It was purely based on his behavior.

A shop that routinely throws out black customers is racist and discriminating, a shop that throws out customers who are violent, rude, threatening, drunk, etc., is merely enforcing a code of conduct for their premises and doing so in a way that is not discriminatory — unless they only apply those rules to one class of people. Media platforms removed Trump because of his behavior not because of any inherent trait protected by anti-discrimination law.

These platforms previously worked with Trump and provided him services free of charge and he used them in ways that violated their terms of service. An apartment owner may chuck out a tenant who violates terms of service for using his property. Car rental companies can deny rentals to people without insurance, a term of service. The same is true for social media.

The bakers intentionally hid their “term of service” from customers. In these cases they only announced “no gays allowed” after the fact. In today’s market, they could announce they refuse to sell cakes to gay couples in advance, but that would be bad for business. Note, such an action would be legal in most of the United States to this day. But, if honest they would lose a lot of non-gay customers over it. So they set up a term of service — no gays — and then intentionally hid it to avoid paying the cost of their bigotry.

Instead they wish to impose the cost on the people they hate, by having them spend time and money to seek out this bakery, as opposed to another one, because they were falsely told it was “open for business” with nothing indicating they were otherwise unwelcome. In cake terms the bigoted bakers wanted to have their cake and eat it too.

I’ve argued the solution to the discrimination problem is to allow discrimination at private, competitive businesses — not state sanctioned businesses existing in restricted markets — but only if they clearly state their policy in all adverts, on their web page and at the business entrance. I sincerely doubt many would want to be that honest about their terms of service due to the heavy financial burden it would impose on them. The market would likely punish them for being bigots. I doubt many bigoted businesses could survive in a free market where their terms of service are known.

That’s the difference between social media platforms and bakers. The platforms are pretty explicit about refusing service to anyone espousing violence. They were not discriminating based on race, religion, sexual orientation, gender, etc., they were simply saying if you want to use our property treat it with respect and here are the rules. Trump violated the contract and ignored—a trait common with extreme Narcissism.

IN SUMMATION

Trump’s free speech was not violated because Trump was not denied the use of resources he owned or those made available to him with consent of the owners. He wanted to use other people’s property — much like he bragged about using other people’s money — without their consent or after they withdrew their consent.

There was no censorship, either by Rand’s limited definition, or my more expansive one, because no force or threat of force was used to strip him of the use of the resources he wanted to use. Businesses offering Trump platforms made the decision he violated their contract for use and his continual presence was a threat to their business and the country at large.

That this was a contractual matter means it was not discrimination based on any protected category, it was his only his unique and individual actions that were being judged. He was evicted because he was causing violence.

I conclude they did the right thing and there was no violation of the rights of this horrid excuse of a man.

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