The bourgeois conception of “free speech” in the U$

Note: The following article is reprinted from Dissident Voice. This is part 2 of an article series on there called “a “sudden bout of atypical decency”?” I have engaged in some editing of my own here in this version. I made one change, apart from slimming down footnote 2, which I feel ashamed to admit and sick to my stomach: I accepted a form of censorship just so Part 2 could be published. It is in paragraph 9. I removed a whole section because they have a different conception of speech. The exchange I had is noted below this article.* I have added in another two lines in this version of the article about speech as well, which is similar to those I proposed as a compromise with their view, but this was rejected, since I apparently wrongly perceived  their position, leading to more email negotiating as you could call it. After I made this change, the editor told me: “Thank you, LC.  DV has published your submission…It would be a good idea for you to go over it and make sure I didn’t miss anything and that everything is in its proper place. The title of Part 1 had to be cut because of its length (if you were wondering) and I’d suggest it looks better with the subtitle. For Part 2 the title you submitted was used but the subtitle is the main title in Part 1. DV does that so that there is no confusion if Parts 1 and 2 show up in a search with the same title. (Just explaining in case you were curious about the titles.) All the best and here’s hoping DV will hear from you again sooner rather than later. In the meantime have a great school year.” Yes, I am going to school again, that is true. But, apart from that, I will submit to Dissident Voice again, but won’t let myself get in a situation like this again, knowing Dissident Voice’s bounds. As always, I look forward to your comments on this article, as I may be faulty in my views when it comes to these matters.

In part 1, I talked about the power of social media giants and claims of “free speech” on their platforms. Again, I am referring just to the U$, as I am most familiar with the debate on “free speech” there. In the future I may expand this analysis to other capitalist countries.

The bourgeois conception of “free speech” is so ingrained that Nadine Strossen, a former president of the ACLU, can spout on The Real News about a “we the people” government in the U$, while declaring that government regulation through net neutrality and antitrust laws, along with consumer pressure, and “free speech” (or counter speech) can stop the bigots in their tracks. This is a laughable notion from a person who says porn should be tolerated (not restricted or banned), is currently a contributor for the Federalist Society, criticized campus speech restrictions, and was a friend and fan of Antonin Scalia! She also, infamously, defended the actions of former ACLU president Anthony Romero, who had agreed to “screen the organization’s employees against terrorist “watch lists”…in order to qualify as an officially approved charity for federal employees,” advising the “Ford Foundation to “parrot” the Patriot Act in formulating controversial new restrictions on the speech of its grantees,” and trying to impose “very broad confidentiality agreement and technology rules on ACLU employees,” as argued by former ACLU board member Wendy Kaminer, who also harshly criticized the organization for its policies on civil liberty. As The Onion joked in one article, when Strossen was president, the ACLU declared that it would “”vigorously and passionately defend” the Georgia chapter of the American Nazi Party’s First Amendment right to freely express its hatred of the ACLU by setting its New York office ablaze on Nov. 25.” That’s how ridiculous the ACLU is, without a doubt.

Last year, the Supreme Court held, in Packingham v. North Carolina, that a North Carolinian law that restricted access of sex offenders to social media violated the First Amendment. More than that, this case, which was the first major case on the topic since the Reno v. ACLU case in 1997, opens the floodgates for “free speech” to apply to the internet as the latter is considered analogous to a public forum, perhaps leading to further jurisprudence.  But more than being a supposed victory for “free expression,” which was likely cheered on by the ACLU, Justice Anthony Kennedy’s majority opinion raises the question of what parts of the internet would fall under First Amendment protection.  In this opinion, followed by a blistering dissent from Samuel Alito, Kennedy, clearly a tech optimist, wrote that the First Amendment is a “fundamental principle” meaning that “all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more,” adding that this now applies to cyberspace, including social media, with users engaging in a “wide array” of “First Amendment activity” that is “legitimate” and “protected.”

He added that the digital age has a “vast potential to alter how we think, express ourselves, and define who we want to be” which can quickly change, while implying that the First Amendment may offer some protection for access to social media and the internet. As for social media, he argued that it not only allows “users to gain access to information and communicate with one another about it on any subject that might come to mind” but that it is the “modern public square” that, in his view, allows for people to explore “the vast realms of human thought and knowledge…mak[ing] his or her voice heard.” This is clearly an optimistic view of social media which often is filled with utter and mundane garbage. I think social media includes many more pictures of people showing off their dogs, newborn babies, and silly cat videos, than those who engage in discussion that opens “human thought and knowledge.” What is Kennedy smoking here?

With this decision, the arguments of those like the ACLU that want “an uncensored Internet, a vast free-speech zone,” the EFF that wants “sufficient legal protections for users and innovators,” and Strossen, are clearly boosted. Still, this does not mean there will be “free speech” on the internet anytime soon. While the general conception is that “anyone can say anything online,” this is not only changing but it is inaccurate because intimidation is not protected speech on the internet, along with inciting violence, making threats of violence, privacy invasion, defamation, copyright infringement, inciting a riot or inducing lawbreaking, “fighting words,” false advertising, and disrupting school activities, to name a few. While some say that the First Amendment asserts that that one can express themselves “without interference or constraint by the government,” the fact is that a government can “place reasonable restrictions on free speech, such as those that restrict the time, place, and manner of the speech.”

Some have tried to use the Packingham decision to declare that there should be “free speech” on the internet. Others, like White nationalists and Neo-Nazis, have gone even further to draw a parallel between private shopping centers and social media platforms! If this connection was to be made, which is a remote and absurd possibility, those on social media would not be able to “unreasonably intrude” on the private property rights of these platforms, having to “reasonably exercise” their rights while their ideas would not be allowed to have “free rein.” Additionally, their words and actions would have to be deemed peaceful, orderly, and not disturbing the functioning of these platforms, with the latter allowed to restrain the “time, place, and manner” of user’s speech. They could be prohibited from imposing “blanket and total prohibition on the exercise of First Amendment activities” of users but they would also be allowed to restrict those engaging such speech so they did not obstruct or unduly interfere with “normal business operations” or does not impede, distract, or interfere with the business itself.

Furthermore, anyone who engaged in substantial damage or physical obstruction of social media could be restricted or banned, along with being prohibited from annoying and harassing individuals. At the same time, while users could have the right to “freedoms of speech and religion” they could also be restricted if there was a public space where they could use their rights apart from social media, and by the fact that the U$ Constitution provides no protection or redress from a private person or corporation, with the 1st and 14th Amendment not applying to action “by the owner of private property used only for private purposes.” This is not what the bigots would want! Even with these interpretations, Twitter could still say it is a private sector company, which requires users to abide by their rules. Additionally, it is worth noting that these social media platforms are not public since the “supposed public square is actually a small group of digital platforms owned by an even smaller group of giant transnational corporations,” a fact that should be obvious. [1] Even Mozilla, which says that “the principle of free speech is a foundation of Western democracy” admits that “free speech gets more complicated in private spaces – that is, spaces not owned by the government…private businesses have every right, legally, to refuse service to individuals who don’t adhere to their stated policies.”

Jimmy Dore and others have said the First Amendment should be applied to Facebook (and other social media) because they see it as a public space and have also said that such outlets should be public utilities. Now, in order to be a public utility, these social media companies would have to be classified the same as other companies providing “a service to the public such as transport, energy, telecommunications, waste disposal, or water and any other public goods and services.”  The question arises: are companies like Facebook, Twitter, and YouTube, to give a few examples, public service corporations that engage in operations that “serve the needs of the general public or conduce to the comfort and convenience of an entire community,” which currently includes “railroads, gas, water, and electric light companies”? Well, we know they are clearly private companies with operations which are “executed by private individuals,” comprising some of those in the corporate (or private) sector which is “responsible for the allocation of the majority of resources” within a capitalist economy.

Now, to be a public service company, they would have to “provide a service to the public” which includes “transport, communications and the like.” These social media platforms likely would fall into the category of public service company rather than a public service corporation because they do not necessarily serve the needs of the general public or conduce convenience or comfort of an entire community. Instead they gather private information and make it public, selling it for profit, having great power over people’s lives. Likely such efforts to make social media a public utility will fall flat because the U$ government is legally obligated to “preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation” even with other provisions on civil liability.

The bourgeois conception of “free speech” is taken by some to an extreme, like Noam Chomsky, who defends the speech of holocaust deniers for “civil libertarian” reasons, opposing existing (and justified) laws that criminalize Holocaust denial across Europe, including Germany, saying that it is a violation of their inherent “liberties” even though it actually an effort to prevent those from spreading lies about the Holocaust, a terrible period in Germany’s past. The Holocaust during World War II was not unique to human history: the unconscionable atomic bombing of Hiroshima and Nagasaki, genocide of indigenous peoples of the Americas, the ongoing genocide of Palestinians, and the genocide in Rwanda, count among the worst horrors of humanity. As it is not illegal to discuss the deaths of these horrors, apart from Rwanda, it is also not illegal to discuss the deaths during the Holocaust, which number in the tens of millions, as high as 17 million if all victims of persecution are counted as argued by Donald Niewyk, including Jewish, Soviet POWs, Polish, Romani, disabled, Jehovah’s witnesses, and gay peoples, to just name a few of those deemed undesirable by the Nazis. Perhaps denial or support of these horrors of human history, apart from the Holocaust, should be criminalized, but this likely will not occur because a good number of individuals still support the aforementioned horrors, sometimes gleefully. As a result, such denial of horrors is a way to support existing capitalist narratives. The situation will only be changed if there is a new, alternative narrative, perhaps only possible under a new system. Even the Universal Declaration of Human Rights that recognizes the “right to freedom of thought, conscience and religion” (Article 18) and “right to freedom of opinion and expression” (Article 19) is limited by the fact that everyone can be subject to legal limitations to secure respect and recognition for freedom and rights of others, along with meeting “the just requirements of morality, public order and the general welfare in a democratic society” (Article 29). [2]

There are many laws across the world when it comes to speech, with some countries trying to experiment different levels of censorship online, irking those who defend the bourgeois conception of “freedom of speech,” with some even bringing in anti-communist rhetoric to complain about “the lack of transparency found in Soviet-style governance structures” disappearing in Eastern Europe. Some, like the horrid organization, FIRE (Foundation for Individual Rights in Education) have declared that “the best antidote to tyranny is free and spirited debate, not suppression of speech,” which Jimmy Dore basically expressed on his show, while others like HRW or The Guardian complain about the “Great Chinese Firewall” and challenges “journalists, bloggers and dissidents” have to undertake. This has led to a list of “enemies” of the internet and efforts to break through claimed “closed societies” (one organization gives the examples of Iran and China), believing that making these societies “open” will bring goodness to the world. This id despite the fact that the internet has “been a revolution for censorship as much as for free speech” as The Guardian admitted back in 2008, which anyone with sense would recognize.

The majority of those in the Western Left are indoctrinated to think they are free, leading them attack other leftists across the world who holding power as noted by Andre Vltchek. However, his analysis is faulty since he incorrectly describes China, part of the revisionist triad (the other two countries in this triad are Laos and Vietnam), as communist when it has actually been on the capitalist road since 1976, with a form of state-supported form of capitalism which is different from that of the West, and saying that Russia’s policy is “clearly anti-imperialist” when it is actually just nationalistic.

Clearly, some individuals have more of an ability for speech than others. As the subreddit of /r/communism puts it rightly, which I still agree with even though I was ousted as a mod after I began criticizing China as capitalist rather than saying it is socialist (consensus of the subreddit’s mods), “speech, like everything else, has a class character, and that some speech can be oppressive.” This is something those who believe in the bourgeois conception of “free speech” cannot and will not acknowledge. In the capitalist society of the U$ this manifests itself by capitalists like Robert Mercer, the Koch Brothers, George Soros, Pierre Omidyar, Mark Zuckerberg, Elon Musk, and many others, having the ability to publish and project their speech more than those on meager budgets. Basically, this means that ordinary people, the proletariat, have no influence (or power in) on the decision-making and politics of the U$ despite all rhetoric claiming they have such influence. How this manifests itself in the world of “free speech” is it means that those capitalists who are hatemongers can spread their horrid message far and wide while those who try to counter them get less exposure. [2]

We do not have to give such speech “respect” as some have declared we should, since there is the idea of the heckler’s veto, where a public event is canceled or suppressed due to “interruptions, protests, or violence” or the threat of such actions, one of the many tools, apart from de-platforming (not by social media outlets, but literally in person or by organizing against them online) which can be used to fight against bigoted or otherwise detestable individuals. In the end, there should be criticism (and efforts to counter) corporate control over information but this does not mean we have to defend hateful speech. Instead, those who speak truth to power, especially on the political Left, should be vigorously defended. As Michael Parenti once put it, “democratic victories, however small and partial they be, must be embraced…We need to strive in every way possible for the revolutionary unraveling, a revolution of organized consciousness striking at the empire’s heart with the full force of democracy, the kind of irresistible upsurge that seems to come from nowhere while carrying everything before it.” Victory to the proletariat! A socialist world is possible!


Notes

*First message from DV editor at 3:23 AM on Sept 1  which confused me:

Hi, LC,

I’ve gone over Part 2 and it’s ready for publication apart from this sentence:

The bourgeois conception of “free speech” is taken by some to an extreme, like Noam Chomsky, who defends the speech of holocaust deniers for “civil libertarian” reasons, opposing existing (and justified) laws that criminalize Holocaust denial across Europe, including Germany, saying that it is a violation of their inherent “liberties” even though it is actually an effort to prevent those from spreading lies about the Holocaust, a terrible period in Germany’s past.

Holocaust is defined as the destruction or slaughter on a mass scale (especially by fire or nuclear war) which means what happened to Hiroshima and Nagasaki were holocausts; they, too, were targeted deliberately for annihilation.  Synonyms include ethnic cleansing (which the Palestinian people are well familiar with) and, of course, there’s genocide, etc.

We can start with the Original Peoples of North America and move on to the present day.  If these horrors are all out there for discussion, then so too should the events that occurred during WW 2 in Germany and Poland.  We don’t hear of people being charged because they denied the Roma holocaust, do we?  According to Romani scholar, Ian Hancock, over 1.5 million Roma were killed in Germany and Poland during this time; unfortunately, the total will never be known because (a) most were illiterate and signed their names with an “x” and (b) countless were shot on sight in Europe without ever reaching Germany.  Is it illegal to discuss their deaths?  And what about Rwanda?  I could go on.

When I hear from you with respect to this sentence, I will publish it.

My reply at 9:35 AM on Sept 1:

I agree with you that the Holocaust is only one of many horrible crimes in human history, one of the many genocides. I would like the sentence to stay if possible. I don’t know what you are asking me here. Is it that you think I should clarify this sentence, remove it, or what exactly? If it is something to add, I would be willing to say in a new sentence after this one:

“The Holocaust during World War II was not unique to human history: the unconcisble atomic bombing of Hiroshima and Nagasaki, genocide of indigenous peoples of the Americas, the ongoing genocide of Palestinians, and the genocide in Rwanda, count among the worst horrors of humanity. As it is not illegal to discuss the deaths of these horrors, it is also not illegal to discuss the deaths during the Holocaust, which number in the tens of millions, as high as 17 million if all victims of persecution are counted as argued by Donald Niewyk, of Jewish, Soviet POWs, Polish, Romani, disabled, Jehovah’s witnesses, and gay people, to just name a few of those deemed undesirable by the Nazis. Perhaps denial or support of these horrors of human history, apart from the Holocaust, should be criminalized, but it not usually the case, with a good number of individuals still support the aforementioned horrors, sometimes gleefully. This is often to support existing capitalist narratives and the situation will only be changed if there is a new, alternative narrative, perhaps only possible under a new system.”

A message from DV’s editor on Sept 2nd at 6:33 PM, implying that all events (including the Holocaust) should be “open to debate” and that laws prohibiting Holocaust denial are apparently bad, while also bringing up the fake idea of the fire in the theater excuse about free speech, an analogy which is TOTALLY false, as I remember reading in A People’s History of the Supreme Court:

I am not asking you to do anything.  I’m saying that DV prefers not to publish it.  And the sentence that you propose doesn’t speak to DV’s concerns.  What happened in Germany and Poland is the only event in history that cannot be discussed without fear of legal repercussions.  How and why did this happen?  Yet the deaths of the Roma, which occurred at the same time frame, are out there for discussion and anything else. You don’t see a problem with this?  You go on to list several other events that could be criminalized.  This is very problematic.  Free speech is not meant to be a slippery slope.  Once some speech is criminalized, where does that criminalization end?  DV supports free speech within bounds of common sense, not by disingenuously starting a dangerous riot by screaming “bomb” in a packed theater, for instance. Historical events should be open for discussion, debate, all of them. If they are not, why not? I would suggest you take a look at that initial sentence again.  DV will not be publishing it nor the addition as they are now. Other than that, it is ready to go.

The editor sent another at 6:34 PM about the “topic of that sentence,” which I will not quote entirely as it gives out personal information. I will quote the parts that do not involve such information where the editor said “I think you’ll find that it would be ready for publication once the topic of that sentence had been dealt with.  I have just sent you an email re same.” I replied to this saying at 10:06 PM that same day “Yes, I saw that email and am responding to it shortly.”

My final message at 11:04 PM, after composing the email and trying to watch Stanley Kubrick’s Lolita, in which I accept getting rid of the “offending” line, begrudingly. Note that I am NOT disagreeing with my previous position here, just agreeing with her general point even though I still hold fast by my original views:

I agree with you that historical events should be open for discussion and debate. I also understand DV’s position on speech and as such, I am willing to strike the initial sentence (and the one I proposed) from the article so that it can be published since the rest of the article is acceptable. I would rather replace it with the following: “The bourgeois conception of “free speech” is broadly held across the Western World.” Then the rest of the paragraph follows that.

– LC

[1] Paul Blumenthal, “The Problem Isn’t Alex Jones’ Free Speech, It’s Digital Platform Monopolies,” HuffPost, Aug 11, 2018

[2] I would say that the U$ is standing against the principle outlined in the UN’s Millennium Declaration that “men and women have the right to live their lives and raise their children in dignity, free from hunger and from the fear of violence, oppression or injustice. Democratic and participatory governance based on the will of the people best assures these rights,” the Vienna Declaration saying hat “the speedy and comprehensive elimination of all forms of racism and racial discrimination, xenophobia and related intolerance is a priority task for the international community” and violating the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) which says that states “condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races…condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination…[and] shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law.” The U$ is also clearly violating the International Covenant on Civil and Political Rights (1966) which says that “freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others” and especially the provisions that prohibit “any propaganda for war” or any “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”

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