Protecting free speech is complex. It involves understanding American history, overlooked ironies, and a key assumption by the Founders. Now and again, an eye-popping event triggers a collective “what the heck?” One of those just occurred. Here is how to make sense of it.
In an exchange emblematic of our hair-pulling times, a Republican congressional candidate, Danielle Stella, tweeted a statement about Minnesota congressional Democrat Ilhan Omar, based on uncorroborated allegations about Omar leaking sensitive information to an adversary.
The tweet suggested that, if Omar was found guilty of treason, she should face the death sentence. News accounts reported a second tweet with “a stick-figure being hanged.”
In response, Omar decried these as “anti-Muslim dog whistles and dehumanization,” blamed “an entire political party and its media outlets,” and suggested they promoted violence.
Twitter – a private social media organization – shut down Stella’s account, inferring they promoted violence. Twitter spokeswoman Aly Pavela said Stella’s campaign and personal accounts were shut down for “repeated violations of the Twitter rules.”
Notably, this event unfolded against the backdrop of public criticism of social media for not responsibly self-policing accounts to avoid promotion of violence, along with false speech.
The response to the response was an uncensored explosion of news around the event – over countless social and mainstream media outlets, from Facebook and the Washington Times, to the Washington Examiner and Washington Post. Innumerable outlets carried later cycles of debate and mutual recriminations.
And so, it goes. Americans interested in the issue ask whether the tweets were fair, whether they promoted violence, whether Twitter should have shut down the accounts, whether shutting them down was politically motivated, whether Twitter should be regulated, whether regulation of social media violates free speech, and on and on.
In the end, this incident returns us to three touch stones – history of free speech, overlooked ironies, and that key assumption of the Founders.
About history: The Founders deeply distrusted government and disdained prior restraint. That is why the First Amendment reads: “Congress shall make no law … abridging the freedom of speech …” That language is absolute.
Over time, the US Supreme Court has carved out narrow “time, place and manner” exceptions to prevent chaos, violence and societal breakdown. Still, any government restriction on speech must show “substantial justification” to clip, change, or shut down content.
On the other hand, private media – like Twitter – are not government, even if they represent a virtual “public square.” The expectation is that they will protect those with access – or affected by – their public square, but also be fair.
Was the restriction fair? One could argue yes, if you believe the original tweets promoted or incited violence; one could argue no, if – as Stella believes – they just colorfully restated her opinion and the law.
This brings us to an overlooked irony. What did Twitter aim to achieve? Public safety, calming unsettled political waters, avoiding liability and criticism. What did they achieve? Maybe none of the above.
In effect, the natural desire of Americans to speak on what bothers them – and a private venue shutting down political speech bothers them – created an explosion in communications. Exchanges by internet, print, and broadcast media dwarfed the first tweets and responses. If the goal of shutting down the speaker was to quiet the issue, the reverse occurred.
That is the brilliance of the First Amendment. If someone tries to crimp the right, a million voices rise to defend it. Hundreds of media outlets are still alive with the controversy, discussing this “matter of public concern,” including ironically whether this sort of speech should be allowed. So, aiming to squelch free speech, the private censor unintentionally inflamed it. While the First Amendment permits private restriction, it also allows mass objection.
Finally, what is the key assumption underlying the First Amendment? In short, that Americans – in all eras – will act rationally. The Founders presumed that, with an abundance of information, life experience, and common sense, Americans will parse nonsense and reach reasoned conclusions. Allowing competition of ideas, Americans will keep finding truth.
That is what they would likely still think today. Are Stella’s tweets out of bounds, Omar’s behaviors over the top and unbecoming for a congresswoman, justice system doing its job, Congress doing theirs? The Founders would have views and expect us to have ours.
They would also recognize government did not shut down the speaker, a private outlet did. Dozens of media outlets are rushing to right the wrong. Millions of Americans are exchanging opinions about the speakers and shutdown. The potential political motivation is being discussed.
Whatever view one has of Congressman Omar, challenger Stella, Twitter and the media, the First Amendment seems to be working. In the end, our sacred liberty-protecting Amendments are vital. Protecting free speech is complex, but our Founders were prescient. Even today, their foresights protect the Republic.