Jul 062017
 

The following was originally posted on Techdirt.

Sunday morning I made the mistake of checking Twitter first thing upon waking up. As if just a quick check of Twitter would ever be possible during this administration… It definitely wasn’t this past weekend, because waiting for me in my Twitter stream was Trump’s tweet of the meme he found on Reddit showing him physically beating the crap out of a personified CNN.

But that’s not what waylaid me. What gave me pause were all the people demanding it be reported to Twitter for violating its terms of service. The fact that so many people thought that was a good idea worries me, because the expectation that when bad speech happens someone will make it go away is not a healthy one. My concern inspired a tweet storm, which has now been turned into this post.

I don’t write any of this to defend the tweet: it was odious, unpresidential, and betrays an animus towards the press that is terrifying to see in any government official – and especially the Chief Executive of the United States of America. But inappropriate, disgraceful, and disturbing though it is, it was still just speech, and calls to suppress speech are always alarming regardless of who is asking for it to be suppressed or why.

Some have tried to defend these calls by arguing that suppressing speech is ok when it is not the government doing the suppressing. But the reason official censorship is problematic is because it drives away the dissenting voices democracy depends on hearing. Which is not to say that all ideas are worth hearing or critical to self-government; the point is that protecting opposing voices in general is what allows the meritorious ones to be able to speak out against the powerful. There is no way to split the baby so that only some minority expression gets protected: either all of it must be, or none of it will be. If only some of it is, then the person who has the power to decide which will be protected and which will not has the power to decide badly.

Consider how Trump himself would use that power. Given, as we see in his tweet, how much he wants to marginalize voices that speak against him, we need to make sure this protection remains as strong as possible, even if it means that he, too, gets the benefit of it. There simply is no way to punish one man’s speech, no matter how troubling it may be, without opening the door to better speech similarly being suppressed.

Naturally as a private platform Twitter may, of course, choose to delete this or any other Trump tweet (or any tweet or Twitter account at all) for any reason. We’ve argued before that private platforms have the right to police their services however they choose. But we have also seen how when speech is eliminated from a forum, the forum is often much poorer for it. Deciding to suppress speech is not something we should be too quick to encourage, or demand. Not even when the speech is provocative and threatening, because so much important, valid, and necessary speech can so easily be labeled that way. As Justice Holmes noted, “Every idea is an incitement.” In other words, it’s easy to justify suppressing all sorts of speech, including valid and important speech, if any viewpoint aggressively at odds with any other can be eliminated because of the challenge it presents. Courts have therefore found that speech, even speech promoting the use of force or lawlessness, may only be censored when “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Given that even a KKK rally was found not to meet this description, these requirements for likely imminence of harm are steep hurdles that Trump’s tweet are unlikely to clear.

The truth may well be, as many fear, that Trump would actually like people to beat up journalists. It may also be true that he has some bad actors among his followers who are eager to do so. But even if people do assault journalists, it won’t be because of this tweet. It will be because Trump, as president, supports the idea. He’ll support it whether or not this tweet is deleted. After all, it’s not as though deleting the tweet will make him change his view. And it’s that view that’s the real problem to focus on here.

Because Trump has far more powerful means at his disposal to act upon his antipathy towards the media than his Twitter account affords. In fact, better that he should tweet his drivel rather than act on this malevolence in a way that actually does do direct violence to our free press. Especially because, in an administration so lacking in transparency, his tweets at least help let us know that this animus lurks within. Armed with this knowledge we can now be better positioned to defend those critical interests his presidency so threatens. Painful though it is to see his awful tweets, ignorance on this point would in no way have been bliss.

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