SCOTUS - “The remedy for speech that is false is speech that is true. This is the ordinary course in a free society.
The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth … If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. The theory of our Constitution is that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person … Society has the right and civic duty to engage in open, dynamic, rational discourse.”– United States v. Alvarez, 567 U.S. 709, 724 (2012).
With these words, the Supreme Court echoed an aged but essential ideal . . . a timeless reminder to censors everywhere be they the algorithm muzzle of trendy social platforms, arid academic institutions, or poising political pens that the voice of freedom demands more than pious inapt platitudes. It mandates an unfettered even clashing marketplace of ideas.
Although preached worldwide by pariahs for time immemorial, in its most recent historical iteration the marketplace of ideas traces back hundreds of years to the quills of John Milton and John Stuart Mill and is bottomed fundamentally on the premise that the free dissemination of ideas creates an essential social process where truth competes and will eventually win out over falsehood, if only left to its unbridled natural device. It is this air of fact over fiction; of surety over sophism; of particulars over proselytism that threatens the status quo ante of the privileged that maintain power no matter what its price against those that fight to rid themselves of that very occupation of narrative, be it physical or one of ideas.
The move from the abstract philosophical debate in the United States to practical First Amendment application finds its genesis in the dissenting opinion of Justice Oliver Wendell Holmes in Abrams et. al v. United States, 250 U.S. 616 (1919) an early case in which a constitutional challenge was raised to the conviction of anti-war dissidents under the Espionage Act for distributing leaflets calling for a strike at U.S. munitions plants. In finding such acts to be protected political speech enshrined under First Amendment jurisprudence, Holmes noted “that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
Challenged by the test of time and petty political posture to be sure, the marketplace of ideas has only grown in ardor and reach since Abrams. As reaffirmed most recently in City of Austin v. Reagan Nat’l Adver. Of Austin , LLC, 142 S. Ct. 1464 (2022) “[t]he First Amendment helps to safeguard what Justice Holmes described as a marketplace of ideas . . . A democratic people must be able to freely generate, debate, and discuss both general and specific ideas, hopes, and experiences.” Some twenty years earlier in Virginia v. Black, 538 U.S. 343,358 (2003) the Supreme Court opined that “[t]he hallmark of the protection of free speech is to allow ‘free trade in ideas’ — even ideas that the overwhelming majority of people might find distasteful or discomforting.”
It is clear the dissent in Abrams is no longer a marginal voice in the wilderness looking for welcome for it has evolved to become the linchpin upon which speech–even painful, hurtful and disturbing speech– remains protected under now well-settled constitutional norms. Be it the obscenity of the Klan and neo-Nazis in Skokie, Illinois, the rancid screed of “Jews will not replace us” in Charlottsville or “death to Arabs” heard not just in the weekly Zionist pogroms in occupied Jerusalem, but from the thoughts, if not prayers, of its fanbase from coast to coast, these words may anger, they may hurt, they may intimidate but yet they are protected speech which play an essential role in the search for truth in the marketplace of ideas.
To be sure, the marketplace allegory is routinely used by the Supreme Court in the resolution of free-expression cases. Justices have used it to protect expression in virtually every area of First Amendment jurisprudence: prior restraint, libel, invasion of privacy, pornography access, advertising, picketing, expressive conduct, broadcasting, and cable regulation. The Court has repeatedly said the primary purpose of the First Amendment is to protect an uninhibited marketplace where differing ideas can clash. It is a fundamental rule of freedom, a bellwether of liberty, that Twitter in its ever-changing cherry-picks of good speech and bad, has not heard.
Social media was intended to unite the world in ways not known before: to move beyond the narrow artificial confines of state borders, banners and oaths to facilitate an exchange of ideas among a community of international strangers, but nonetheless a world of fellow travelers. Predictably, what began with the high hope of a legion of virtual street corner pamphleteers, has morphed to become another controlled megaphone of the rich, the powerful, the political class who sell costly shares in its commercial loudspeaker to the highest bidder, but yet the lowest of shareholder.
Over the years Twitter has grown from a platform of unbridled hope to orchestrated dictate as states have unleashed armies of paid trolls and bots to control the narrative. No one has spent more time or money in the effort to own the storyline than has Israel which has poured hundreds of millions of dollars into recasting its horrors and targeting those it sees as a threat to its tale of deadly fiction. It is clear I’ve become a favorite target of the Israeli/Zionist narrative with increasing complaints filed against me for nothing more than mere words. Be it a post of “Springtime for Hitler and Germany” from the famed musical the Producers, or another challenging the assertion that Judaism is a race, but wishing its author a good day at the tanning salon, on Twitter I have long used fact or sarcasm to challenge the palpably false sale of Israel as a democracy victimized by the world.
This past week I was permanently banned by Twitter for “hate speech” and “incitement to violence” without any example of where and when my words crossed that line. Twitter does not understand or simply refuses to accept a world where words, be they from the pen of the author to the book of their reader, are essential to the marketplace of ideas. It does not accept that one’s vision and voice is not a commodity to be owned by an algorithm be it a robot or private jet. Ideas are eternal. They bring friction, at times anguish, but ultimately no matter what their language they can bring boundless unity in a world of endless pain.
Twitter is a US-incorporated and US-based corporation. Unlike dozens of countries throughout the world, there is no “hate speech” or penalty for such within the United States. Though advocates of hate speech legislation have argued freedom of speech enhances an oppressive narrative disparaging equality and the Fourteenth Amendment’s purpose of ensuring equal protection under the law, it is an argument long in search of constitutional relevance.
From its earliest days the framers dispatched with little difficulty the notion of good speech and bad and rejected a test of ideas to be resolved through a balancing of the relative costs and benefits of a given declaration or debate. And though at times of great political tension or national peril, efforts have been made by some to tailor an otherwise unbridled pathway of words, the Constitution has held–foreclosing any effort to revise the First Amendment paradigm on the basis that some speech is simply unworthy of protection. More than 220 years ago the Supreme Court pronounced that the Constitution is not a mere abstract manuscript “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).
Is speech absolute? No. Are there categories of expression that cross a very wide wall of shelter, along the way shedding First Amendment protection? Of course. For example… neither obscenity nor defamation; fraud nor actual incitement are protected speech. They represent “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942).
Yet, there is no constitutional exception for so-called hate speech. That some, perhaps many, may find expressions of bigotry, racism, and religious intolerance or ideas to be vulgar, offensive, profane is of no constitutional moment whatsoever. The First Amendment permits speakers to utter racially charged and offensive words in public directed at minorities and political groups. Terminiello v. Chicago, 337 U.S. 1 (1949). It permits them to express “virulent ethnic and religious epithets.” United States v. Eichman, 496 U.S. 310 (1990). It allows sponsors to exclude members of the LGBTQ community from marching in a private parade. Hurley v. Irish-American Gay, 515 U.S. 557 (1995). It allows me to wear a jacket in a public building that says “Fuck the Draft” [Cohen v. California, 403 U.S. 15 (1971)] or to burn the American flag in protest. Texas v. Johnson, 491 U.S. 397 (1990). It even tolerates a call for the overthrow of the United States government. Brandenburg v. Ohio, 395 U.S. 444 (1969). The takeaway from these cases and many others is palpable and settled. Ultimately in a free society “[t]he right to speak freely and to promote diversity of ideas and programs is, therefore, one of the chief distinctions that sets us apart from totalitarian regimes.” Terminiello, 337 U.S. at 4.
Lest there be any question about the continuing protection of so-called hate speech any such concern was resolved twenty years ago, in R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992). In R.A.V. the Supreme Court put to bed the notion that “hate speech” . . . words — actual or expressive– can, without more, be legislated against in almost all circumstances. R.A.V presented the high court with a particularly egregious challenge in that a group of white teenagers after a conversation fueled with racial hatred toward a Black family who had recently moved into the house across the street, made a cross and set it afire in the middle of the night on the lawn of their home. Later they burned another one on the street corner clearly visible from that home.
There could be no debate about the hate -filled motivation of the teens as historically, cross-burnings had been the trade-mark of the best-known hate group in America, the Ku Klux Klan, the penultimate white supremacist, anti-Semitic, anti-Catholic, xenophobic organization which terrorized many communities by lynchings, murders and other acts of violence in the name of racial segregation. Arrested and convicted, the Supreme Court in a unanimous decision overturned their conviction for a hate crime striking down an ordinance against speech that causes “anger, alarm, or resentment” based on race or religion. Noting that the teens could be convicted for offenses such as trespass or mischief, the Court made clear that the injuries of racist epithets and symbols does not outweigh the right to free speech. As noted, R.A.V is not an anomaly but reflects a long unbroken line of constitutional matters in which offensive even hateful speech has been deemed to be protected by the First Amendment. In case after case where the issue of hate speech has arisen, the Supreme Court has held that statutes penalizing such speech “must be interpreted with the commands of the First Amendment clearly in mind in order to distinguish true threats from constitutionally protected speech.” Perez v. Florida, 137 S. Ct. 853 (2017).
Ultimately that distinction, like Twitter’s mantra of incitement, turns on the speaker’s intent and the likelihood of result. One of the landmarks of American political liberty is the celebrated case of Brandenburg v. Ohio, 395 U.S. 444 (1969) which finds its genesis in the Holmes dissent in Abrams some fifty years earlier. Originally arising in the political hysteria of the First World War, with the prosecution of activists for sedition and espionage on the basis of speech for its “tendency and the intent behind it,” Brandenburg raised the bar to heights that remain no less strong or compelling today. Under Brandenburg “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likelyto incite or produce such action.“
Brandenburg unmistakably insists that any limit on speech must be grounded in a realistic, factual assessment of harm. So, Twitter, tell me just what actual harm my decade on your platform has caused anyone. Where have my words these past ten years been directed to inciting imminent lawless action and such that they were likely to produce that result? Can it be using Twitter to share my numerous essays, opinion pieces and podcast interviews some of which, perhaps many, have caused unease or aggravated others? Or is it my public solidarity with oppressed peoples? Or my posts about the meaning and application of domestic and international law? Or my preach about the continuing injustice rained down by extant colonial projects on indigenous communities throughout the world? Or is it my expose on the American criminal justice system and its carceral state? Or has it been my challenge to a corrupt political process in the United States? Or my decades of representing political dissidents and movements and ideas throughout the world? Or my indictment of imperialist attacks and sanctions imposed upon states that say no to Western hegemony? Or my biting sarcasm that embarrasses cults of personality that are always the first to raise questions and challenge but last to provide seasoned consequential answers? Of course not.
Is it hateful or inciteful speech that brought me to address student bodies at Yale’s Divinity School and the law schools at Cornell and Pace; or involved me in the acclaimed international debates in Doha or Intelligence Squared in NYC; or had me lecture state and federal public defenders on criminal law; or selected me to serve as a mentor for young interns from top law schools throughout the country; or to appear dozens of times on live domestic or international televised forums discussing controversies of the day; or had me speak frequently at international conferences, or to advise foreign heads of state on legal issues and process; or has seen me regularly published in several languages in media outlets throughout the world; or had me designated as an expert on free speech by an administrative court in South Africa? Perhaps its decades of trying cases, writing briefs, and arguing appeals in state, federal, and international courts including the Supreme Court of the United States, six separate federal Circuit Courts of Appeal, the New York State High Court, the Hague, the ICC, and at INTERPOL that have left me woefully ill-equipped to convey the interest of clients or my own thoughts without digressing into so-called “hate speech” or “incitement to violence.” So just what is it that I did to invoke the wrath of the finely tuned, experienced, skilled censors of Twitter? In the first instance, I received a notice I was being blocked for a “hateful” post that said “death to Arabs,” death to Arabs,” and “death to Arabs.” Indeed, that was my post, but not my commentary.
Can it be the finely tuned sophisticated algorithms that flagged this tweet did not have the cognitive capacity to understand nuance or to juxtapose it to another’s the preceding tweet which, in essence, applauded Zionism and Israel as expressing the finest in the Jewish tradition of love and humanity? Is it possible the robot censor did not understand that my rejoinder was not of my own design but rather referred to that of Zionists chanting “death to Arabs,” death to Arabs,” “death to Arabs” during what has become their almost weekly pogrom in occupied Quds?
Full stop. Having filed my initial appeal pointing out the actual meaning and context of my “hateful” post, not long thereafter Twitter notified me that I was now blocked not on the basis of a single tweet but rather because of hateful and inciteful speech in general. In the days since I have filed several additional appeals requesting particularized examples to support this generic allegation that I am an inartful evil person, asking it to preserve related records and seeking the involvement of one of its attorneys. Twitter has gone silent not replying to any additional inquiries.
As the self-anointed protectorate of what it considers to be worthy values and speech as opposed to the unseemly, Twitter has long reserved unto itself the unitary power to impose sanctions for the daring of those who break with the arbitrary tenor and tone of its ever-changing “guidelines”. Putting aside for another day, but one surely yet to come, the constitutional question of whether and to what extent Twitter is mandated to comply with First Amendment edicts because it invites and serves as a public forum fulfilling a quasi-public function [Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980)] nevertheless its subjective value-based edicts must be viewed in the light of settled constitutional law. It is there that Twitter and other social platforms will ultimately lose. Although the constitutional arguments that have addressed and rejected the Twitter pen pals of hate speech and incitement to violence are, by now, rich and legend, I will save for another time, perhaps another venue, a full argument as to why Twitter is bound by the same constitutional obligations that granted Citizens United and its private corporate cash cow the full protection of the First Amendment.
And what of the grand masters of the Twitter universe and their dutiful enforcers of good speech and bad … those who’s insight, experience and commentary about the pressing issues of our time is so widely respected and in demand as to be sought out not by political scientists, theologians and world leaders but by the sounding-board of their own cloistered mirrors. To be sure, the Board Chairman of Twitter, Bret Taylor has no doubt spent his life pursuing social justice for all as evidenced by an estimated net worth of $226 million dollars. This obvious sacrifice of personal reward for the benefit of those in need found its launch in providing software to businesses that were looking to increase productivity and massive profit. It worked. It still does.
Who is Parag Agrawal? Having been heralded by the Times of India with the headline of “India gets a handle @Twitter as Parag Agrawal named CEO,” the new chief executive officer quickly caved to the demands of the Modi Government when Twitter deleted accounts and tweets connected to farmer protests after the Delhi High Court authorized the government to take any steps against it should it refuse. Later when facing the prospect of criminal prosecution for any failure to observe new guidelines to regulate digital content on social media and streaming platforms, Twitter once again self-censored by adopting new local digital rules essentially promulgated to ensure content control of unpopular domestic speech or dissent in India. But alas, in banishing me from the marketplace of ideas, Mr. Agrawal’s censors failed to recall his own personal taunt at the hands of trolls who accused him of hate speech for his post “If they are not gonna make a distinction between Muslims and extremists, then why should I distinguish between white people and racists.” No matter how upsetting that post might be, like mine, it was not his own original thought, but simply a recast of an earlier commentary of another.
What of Board Member David Rosenblatt? Although sure to draw the predictable tedious shriek of antisemitism for merely noting his devotion to Israel, can Mr. Rosenblatt’s presence on Twitter’s small Board of Directors and the special treatment Israel has long enjoyed from its platform be mere coincidence? A co-founder of the Arava Power Company, an Israeli solar development enterprise, Rosenblatt, known for his “strong ties” to Israel, where he is a frequent visitor, sits on a number of other Boards which maintain offices in the “nation-state” and which encourage and support Zionist activities there. Among their endeavors is the “Onward Israel” program which funds internships in Israel for young American Jews; Birthright Israel which sponsors trips to the occupied age-old communities of Jerusalem and the Golan Heights; the Center for Israel Engagement which subsidizes delegations between Israel and the US; sponsorship of programs providing economic and cultural support for the Israeli “sister-City” of Nahariya; and a college scholarship program which provides financial support to recent immigrants in Israel, with a priority for those who were in the Israeli Defense Forces.
What about this special relationship between Twitter and Israel? As a starting point, any examination of this bond and its impact on honest fact-based discussion and debate must necessarily begin from the recognition that Israel, like India, and a number of other autocratic regimes has stripped Twitter of any meaningful discretion let alone the ability to ensure an untethered exchange within the marketplace of ideas in the demanding state.
For example, according to Quds Press, Israel requires social media giants to permit it to have input, if not control, over the content of the posts which ultimately find their way into the stream of debate within the Israeli public at large. At one point Twitter allegedly deleted thousands of posts, pages and accounts following demands made by the Ministry of Justice based upon little more than vague unsupported claims that the information posed a threat to the safety of Israel. Elsewhere with unflinching regularity, Twitter suspends accounts of Palestinian journalists posting tweets critical of Israeli activity.
Recently the account of renowned Palestinian journalist Mariam Barghouti was suspended while she was reporting from a Sheikh Jarrah solidarity demonstration in the occupied West Bank. While Twitter later reported the suspension as “accidental,” it did not provide the specific grounds that had prompted its initial precipitous decision. Several years ago, Twitter precipitously suspended multiple accounts of Quds News Network with several hundred thousand followers based solely on the complaint of the Palestinian Authority that the accounts had violated one of their local rules in the occupied territory. Reportedly the PA action was a result of Israeli pressure. Last year it suspended the account of CODEPINK co-executive director Ariel Gold, a prominent Jewish activist known for her indefatigable support of justice for Palestinians. Long targeted by Zionist trolls, her suspension followed a number of tweets including one mourning the extrajudicial execution of a Palestinian man. So, too, famed Palestinian academic and author Ramzy Baroud’s account was recently blocked for unspecified violations of Twitter rules. After an international uproar, his account was reinstated with no particularized grounds provided for its suspension.
Elsewhere Twitter has permitted the Israeli government to use its platform not just for the dissemination of patently false information but as a cover for its military operations. For example, the Israeli military’s official Twitter account posted a clip that purported to show Hamas embedding missile launchers into civilian neighborhoods. In reality, the footage was but a decoy weapon used by Israel during a training exercise. On other occasions, the IDF posted images of buildings it bombed in Gaza, including one that housed various media outlets including Al Jazeera, the Associated Press and Middle East Eye journalists. Although the images are typically accompanied by blanket assertions the building harbored Hamas military assets, no evidence is provided to support these indiscriminate claims. In an even more brazen violation of Twitter rules, if not international law, the Israeli military once announced in a post that its troops had begun attacking Gaza. A deliberate lie, it was part of a scheme to draw Hamas fighters into exposing themselves by thinking an invasion was underway when one was not. Likewise, the English version of the IDF account falsely accused Palestinian model Bella Hadid of advocating for “throwing Jews into the sea”, when in fact she had chanted “From the river to the sea, Palestine will be free.” In none of these instances did Twitter take any action against Israeli state accounts, or its supporters, despite their willful dissemination of calculated misinformation and libel, or a clear intended purpose to bring about the loss of Palestinian lives.
In the light of what is very much a glaring all-out surrender to the political and military interests and demands of Israel and Zionists across the world, Twitter has increasingly, almost eagerly, forfeited any vestige of objectivity in the marketplace of ideas regarding the Palestinian struggle for self-determination, liberation and justice. Comfortable with accepting, indeed readily furthering, the Zionist narrative, it has unleashed its auto-censors against Palestinian voices and those that stand with them opting instead to market the distorted and dishonest Israeli tale of perpetual victim to overwhelm the reality of the life and death of Palestinians at their colonizer hands. I am but one of many such targets.
Over the course of my decade on Twitter, I have drawn to my voice some forty-thousand followers and published almost half a million tweets. While they have covered a wide, diverse range of topics and issues, much of my effort has been born of solidarity with my Palestinian cousins . . . a united family of resistance, one determined to expose and to defeat the criminal aims of a European colonial project.
For those reading this essay through a link on Twitter, unlike the dozens of occasions when it served as a launch for other controversial often uncomfortable views of mine, this missive posts not from me directly, but through a supporter, as I am banned: victim to Twitter’s corporate hypocrisy, one that gauge’s speech not by the value of its untempered exchange, but rather its monied popularity and cheap, political and social convenience.
Regrettably, over these years we have seen Twitter, once a largely independent platform of timely social and political discourse and conscience, essentially crumble to become an intimidating merry-go-round of often irrelevant thought and commercial sale that challenges little but what to eat; what to wear; how to look. This may be the public square of mercantile ease . . . it is not the marketplace of ideas.
Since the day when at age16 my nose was bloodied and eyes burned by police batons and pepper spray as one of the thousands who marched across the Brooklyn Bridge in an antiwar protest to shut down the headquarters of the New York City Police Department, I have fought against hate and state violence everywhere. As a student activist, community organizer, Vista, social worker, public defender and international human rights litigator, in and out of courts I have sided with the despaired, the despised the disaffected at every crossroad of my life. Although at times my journey has taken me into the midst of armed struggle, be it at Wounded Knee, Oka, or in Palestine, my personal passage has been that as an advocate, a wordsmith of sorts who has learned to navigate the marketplace of ideas with and on behalf of those whose voice, but not their vision, has been muffled if not muted by the state and its agents because of color, faith, poverty or principled politics. For me, nowhere has that fight been longer, louder or more essential than it has been in support of Palestinian liberation and justice.
So, Twitter, against the backdrop of your duplicitous corporate logo that exalts your multi-national empire as “a microblogging social media platform which gives you the freedom to post and share anything without any barriers or restrictions” . . . your words, not mine- do what you must.
At day’s end, you can take from me the virtual stairway to your trembling co-opted platform, but you will never silence my voice.
(Stanley L. Cohen is lawyer and activist in New York City. This article was featured in CounterPunch.)