Recently, Alex Jones was banned from YouTube, Spotify, Apple, Twitter and Facebook. Jones, host of InfoWars, is a far right wing personality particularly advocating a host of conspiracy theories (including the recent “QAnon” farce that has received particular attention as people show up at Trump events pushing the theory), false medical cures, and a litany of false information that put Donald Trump’s fact checking to shame.
Of course, immediately, his supporters were adamant that Jones had a First Amendment right and that these tech companies were violating those rights by shutting him down. For reasons we’ll get into below, we’ll show why that just isn’t the case.
The words of the First Amendment state:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Now, the Amendment also forms the basis of Freedom of Religion, but we’re not going to get into that here; the bulk of what we want to talk about is the rest of the Amendment, particularly “Congress shall make no law…or abridging the freedom of speech or of the press…”
So the reason that Alex Jones can be shut down stems from the very first word in the Amendment, “Congress.” Congress didn’t shut down Jones, and there was no official action by government to do so (and I would note that every branch of government right is controlled by Republicans whose base overlaps with Jones’). It was private industry who eliminated Jones as a user of their platforms, which they are entirely able to do as a private business decision. Think of it as Starbucks refusing to serve a customer because they were loud, unruly and obnoxious. Lately, organized protests were cropping up to put pressure on these companies to cut Jones out from their platforms, so they removed him.
So that pretty much ends the discussion there; the First Amendment doesn’t apply in this instance. But let’s say government called up these companies and told them to get rid of Jones, would there be an issue then? Let’s dig a little further.
There are also different types of speech that are less protected. One type of limited speech which applies here are what are called “Fighting Words.” Jones, a bit of a firebrand, openly advocated for action against certain people, groups, and businesses. In one case, an event derided as “Pizzagate,” Jones spread a tale about how a child trafficking ring was being run out of the basement of a Washington DC pizzeria frequented by Hillary Clinton staffers and Democrats. Well, someone took Jones at face value and shot up the place trying to “save” the children only to find that the place had no basement and there were no kids, no trafficking, no nothing but scared kitchen workers making pizza and patrons. Police could have shut Jones down then as inciting violence (laws for this kind of thing vary by jurisdiction; not sure what the actual law would have been in DC). That he wasn’t speaks volumes as to the latitude people give related to First Amendment issues.
Another kind of less protected speech include those that create a “Clear and Present Danger” to an audience (bet you didn’t know that phrase came from a free speech case did you?) For instance, you can’t yell “Fire” in a crowded theater if there isn’t one. Jones’ whole persona is prefaced on the idea the world is falling apart as if he is some fanatical chicken little screaming that the sky is falling. Such speech prompting people to take action, particularly violent conduct, is certainly within the area of unprotected speech.
This actually leads into yet another type of speech that is less protected– outright lies. As an example, you can’t commit perjury under the idea it’s free speech, and courts have been less anxious to protect speech proven to be fallacious or obviously untrue. While he hadn’t taken any oath and his show is not a court proceeding, if he were to be charged with a crime based on the Pizzagate fiasco and swore under oath that there were such trafficking there that he knew of, there is a good chance the court would have no problem shutting him down. In fact, it’s possible they would begin to question his competence to stand trial.
Now there is an exception to that last paragraph and it relates to a particularly interesting case. In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), in an 8–0 decision, the Court ruled in favor of Hustler magazine, holding that a parody ad published in the magazine depicting televangelist and political commentator Jerry Falwell as an incestuous drunk, was protected speech since Falwell was a public figure and the parody could not have been reasonably considered believable. Therefore, the Court held that the emotional distress inflicted on Falwell by the ad was not a sufficient reason to deny the First Amendment protection to speech that is critical of public officials and public figures. So, applying to Jones’ situation, Jones could claim that he was just making pointed satire at public figures, but the fact that someone took him seriously (and some people still do) would be a strong fact undermining this argument.
There are other First Amendment rabbit holes we can go down, but for now, we’ll save those for another day.
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Until next time!