Two Cheers for the First Amendment Lessons from the arrest of Pavel Durov, CEO of Telegram. by Bruce Thornton
https://www.frontpagemag.com/two-cheers-for-the-first-amendment/
Americans who approve of government censorship and interference with social media in order to stop “fake news” and “misinformation,” should take a look at what’s going on in Europe. Recently Pavel Durov, the CEO of Telegram, a social media and instant messaging service, was arrested by French judicial officials and charged with “complicity in distributing child pornography, illegal drugs and hacking software on the messaging app,” according to the Wall Street Journal. Those are serious crimes, and if Durov is proved guilty, worthy of condign punishment.
“But,” as the Journal pointed out in an editorial, “many suspect this [the charges] is merely a pretext because Europe is also imposing speech controls on other media platforms. France in 2020 sought to require sites to remove hate speech, though most of its law was blocked by the country’s top court. The European Parliament then stepped into the breach with its Digital Services Act, which compels platforms to curb harmful content, including so-called hate speech, disinformation and propaganda.”
Durov’s arrest comes not long after Thierry Breton, the European Commissioner for Internal Market, threatened Elon Musk just before his live interview with Donald Trump on X, which has already been subject to “formal proceedings for dissemination of illegal content and the effectiveness of the measures taken to combat disinformation.”
As the Journal noted, “This is thuggish stuff.” Apparently, the Biden administration isn’t concerned about allied foreign nations interfering in American presidential politics. But we shouldn’t be surprised, given his administration’s security and investigative agencies’ collusion with, or strong-arming of social media companies to monitor and censor their users’ content.
Or consider Biden’s U.S. Federal Trade Commissioner Rebecca Slaughter, who claims that “‘every government has the right and the responsibility to target illegal conduct that violates the laws of its jurisdiction.’” Note the begged questions about what constitutes “illegal conduct,” and which “laws” allow brazenly violating the First Amendment.
Nor has the collusion stopped. The Journal’s Holman Jenkins reports, “In the past 51 days, The Wall Street Journal, Reuters, USA Today, the Associated Press and CNN (twice) have run stories, based on often anonymous Biden intelligence briefers, suggesting Russia backs Mr. Trump.” And don’t make too much of Facebook CEO Mark Zuckerberg’s letter to Congress confessing his cooperation with the Feds: “Senior officials from the Biden Administration,” Zuckerberg wrote, including the White House, repeatedly pressured our teams for months to censor certain COVID-19 content, including humor and satire, and expressed a lot of frustration with our teams when we didn’t agree.”
But the Journal’s Phillip Hamburger points out Zuckerberg’s Falstaffian valor in his statement that ‘“Ultimately, it was our decision whether or not to take content down, and we own our decisions,’ Mr. Zuckerberg (and surely his lawyers) thus admits both the pressure and the social-media censorship but carefully keeps the two apart. The aim, presumably, is to avoid having Meta treated as a state actor for purposes of the First Amendment and then being held liable for damages.” We can’t rely on social media plutocrats to stop giving in to the Federal Government’s pressure, armed as it is with regulatory, investigative, and taxing powers.
Yet despite such unconstitutional behavior that we have witnessed coming from the White House; and despite periodical First Amendment violations in our history, such as the 1798 Alien and Sedition Acts, the First Amendment has weathered these challenges, and still today for the most part checks the Feds from employing the extreme practices of censorship and intimidation that typify Europe and Great Britain.
Without that protection, whistle-blowers, journalists, writers, artists and anyone else who publicly challenges and criticizes the government and its policies would regularly be charged, prosecuted, fined, and imprisoned. Unaccountable power, the hallmark of tyranny, would compromise, if not destroy our freedom.
Indeed, holding politicians accountable is why free speech was invented by Athens, the world’s first democracy defined by the equality of citizens and their political freedom, no matter their birth, wealth, or education. This meant that the public spaces where the business of the polis happened––from the speeches in the Assembly, to the comedies staged during public religious festivals that placated the gods, whose powers were necessary for human success––had to be free of censorship.
Given the citizens’ diversity, moreover, there could be no rules, manners, or protocols that limited the style and content of public orations. Forensic speeches in trials, political orations, and comedies were often laced with scatological humor, vulgar mockery, and charges of sexual impropriety, particularly homosexual acts, for which ancient Greek had many more insulting epithets than modern English does.
Also, theatrical comedies, like tragedies, were performed during the state-sponsored festival honoring Dionysus, and as such they were inherently political. They featured characters named obviously modeled on, or even named after prominent politicians or other public figures, who were insulted with impunity in front of 17,000 of their fellow citizens in the Theater of Dionysus on the south slope of the Acropolis, the center of Athens’ political life.
Famous examples of comedic insult were the plays of Aristophanes. During the Peloponnesian War towards the end of the 5th century B.C., he relentlessly targeted Cleon, a powerful demagogue and influential politician. Fed up with Aristophanes’ humiliating abuse, Cleon went before the Council to ask that Aristophanes be silenced. But he was quickly dismissed by the members, for free speech was a foundational expression of Athenian freedom and democracy. “Free men,” as Sophocles said, “have free tongues.”
Free speech in comedies and forensic speeches, unfettered by manners, politesse, or decorum, was so important because their public insults and mockery were ways to hold politicians accountable to the people, and reminded them and other powerful men that despite their wealth, education, or noble birth, they were still flawed humans with destructive passions. Citizens laughing and mocking them were reminders that those citizens were political equals and equally free.
The assaults on the First Amendment in the last few decades have targeted comedy because it is also a form of accountability our politicians and elites want to silence or neutralize. The irrational, abiding hatred of Donald Trump in large part was a response to his crude and cutting humor aimed at his political rivals. His critics tried to make it about manners or decorum or “the norms of democracy,” all of which in practice usually function as a form of gate-keeping that elites of all stripes use to marginalize and silence outsiders.
Finally, the First Amendment doesn’t get all three cheers because like all the goods we humans prize, there’s always trade-offs and costs to be paid. People don’t like having their beliefs and ideals, let alone their persons, publicly mocked, and sometimes free speech, especially in an age of social media platforms open to millions, does just that, as well inciting people to violence, or luring prey for criminals like pedophiles.
But censorship, no matter how well meant, carries a huge moral hazard, as we’ve witnessed with the Biden administration’s hijacking of platforms like Facebook in order to serve the interests of one political faction––which violates not just the Constitution’s First Amendment, but the Fourteenth’s principle of equality under law, which is corrupted to Orwell’s “all animals are equal, but some animals are more equal than others.”
Writing in the Washington Post, Megan McArdle has sensibly resolved this conundrum:
“We should not be asking whether anyone wants to help criminals (no!) but whether it’s worth sacrificing our own liberties to make it easier for the government to stop them. The Bill of Rights answered this with a resounding no, and that’s still the correct answer after more than 200 years.”
As the saying goes, freedom isn’t free.
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