“Hate speech” is extraordinarily vague and subjective. Libel and slander are not.
By David French
Mr. French is a First Amendment litigator and senior writer for National Review.
Let me start by making a few things abundantly clear. First, Alex Jones is a loathsome conspiracy theorist who generates loathsome content. Second, there is no First Amendment violation when a private company chooses to boot anyone off a private platform. Third, it seems reasonably clear that Mr. Jones’s content isn’t just morally repugnant, it’s also legally problematic. He makes wild, false claims that may well cross the line into libel and slander.
Right now, Mr. Jones is defending lawsuits filed by multiple Sandy Hook Elementary families accusing him of making intentionally false factual statements. Most appallingly, he has insisted that these grieving families were faking their pain: “I’ve looked at it and undoubtedly there’s a cover-up, there’s actors, they’re manipulating, they’ve been caught lying and they were preplanning before it and rolled out with it.”
So on Monday, when Apple, Facebook and YouTube acted — in seemingly coordinated fashion — to remove the vast bulk of Mr. Jones’s content from their sites, there’s no cause for worry, right? After all, this was an act of necessary public hygiene. A terrible human being who has no regard for truth or decency is finally getting what he deserves.
Would that it were that simple.
There are reasons to be deeply concerned that the tech companies banned Alex Jones. In short, the problem isn’t exactly what they did, it’s why they did it.
Rather than applying objective standards that resonate with American law and American traditions of respect for free speech and the marketplace of ideas, the companies applied subjective standards that are subject to considerable abuse. Apple said it “does not tolerate hate speech.” Facebook accused Mr. Jones of violating policies against “glorifying violence” or using “dehumanizing language to describe people who are transgender, Muslims and immigrants.” YouTube accused Mr. Jones of violating policies against “hate speech and harassment.”
These policies sound good on first reading, but they are extraordinarily vague. We live in times when the slightest deviation from the latest and ever-changing social justice style guide is deemed bigoted and, yes, “dehumanizing.” We live in a world where the Southern Poverty Law Center, a formerly respected civil-rights organization, abuses its past trust to label a host of mainstream organizations (including my former employer, the Alliance Defending Freedom) and individuals as “hate groups,” “white nationalists” or “anti-Muslim extremists,” based sometimes on disagreements about theology or sexual morality or sometimes on outright misreadings and misrepresentations of an individual’s beliefs and views.
Exhibit A of how wrong the center has been: In June, it paid Maajid Nawaz $3.375 million for labeling him an “anti-Muslim extremist.” This is rich, considered Mr. Nawaz is a former Islamist turned Muslim reformer.
Yet Big Tech still listens to the Southern Poverty Law Center and takes action to punish its targets. Amazon recently booted Alliance Defending Freedom from its AmazonSmile charity program because of the center’s designation.
Just last year, multiple internet companies took coordinated action to attempt to remove a vile white supremacist website, The Daily Stormer, from the internet. Days later, ProPublica published an extended piece analyzing how tech companies like PayPal help “monetize hate.” The first example ProPublica provided? An organization called Jihad Watch. It’s controversial, to be sure, but it is miles from The Daily Stormer. Moreover, ProPublica acknowledged that it used the Southern Poverty Law Center’s list (at least in part) to compile its own analysis of “hate sites,” including sites for groups like the Family Research Council.
One doesn’t even have to look to Big Tech to see the almost infinite malleability of the “hate speech” label. In the name of stopping hate speech, university mobs have turned their ire not just against alt-right figures like Milo Yiannopoulos and Richard Spencer, but also against the most mainstream of conservative voices, like Ben Shapiro and Heather Mac Donald.
Dissenting progressives aren’t spared, either. Just ask Evergreen State College’s Bret Weinstein, who was hounded out of a job after refusing to participate in a “day of absence” protest in which white students and faculty members were supposed to leave campus for the day to give students and faculty members of color exclusive access to the college.
The good news is that tech companies don’t have to rely on vague, malleable and hotly contested definitions of hate speech to deal with conspiracy theorists like Mr. Jones. The far better option would be to prohibit libel or slander on their platforms.
To be sure, this would tie their hands more: Unlike “hate speech,” libel and slander have legal meanings. There is a long history of using libel and slander laws to protect especially private figures from false claims. It’s properly more difficult to use those laws to punish allegations directed at public figures, but even then there are limits on intentionally false factual claims.
It’s a high bar. But it’s a bar that respects the marketplace of ideas, avoids the politically charged battle over ever-shifting norms in language and culture and provides protection for aggrieved parties. Nor do tech companies have to wait for sometimes yearslong legal processes to work themselves out. They can use their greater degree of freedom to conduct their own investigations. Those investigations would rightly be based on concrete legal standards, not wholly subjective measures of offensiveness.
Private corporations can ban whoever they like. But if companies like Facebook are eager to navigate speech controversies in good faith, they would do well to learn from the centuries of legal developments in American law. When creating a true marketplace of ideas, why not let the First Amendment be your guide?
David French (@DavidAFrench) is a First Amendment litigator and senior writer for National Review.