Eugene Volokh notes a disturbing federal case regarding 18 U.S.C. § 1513(e), part  of the witness retaliation statute, which appears to criminalize retaliatory speech against witnesses:

And U.S. v. Edwards, a nonprecedential decision handed down Thursday by the Sixth Circuit, read it precisely this way:

Joy Edwards made numerous derogatory posts on Facebook about a confidential informant who testified against her brothers during their criminal trial. The Facebook posts revealed the informant’s identity and called him—among other things—a “snitch.” Edwards was indicted on a single count of retaliating against a witness in violation of 18 U.S.C § 1513(e). At a bench trial, the district court found that the informant suffered harm as a result of these Facebook posts and that the posts were intended to retaliate against the informant. Edwards was convicted and sentenced to short terms of prison and lesser forms of confinement….

Basically, a confidential informant referred to as D.B. did controlled buys from some drug dealers to set them up for arrest. A few months after the trial, the sister of several defendants attacked D.B. on social media:

• Re-posting another user’s photo of D.B. on the witness stand and calling him a “snitch” in the comments section
• Commenting on her own post saying “f*** him,” “Look at that bitch ass snitch lips! They are crack up and ashey white from running it so much! His bitch ass needs some WD40!”
• Re-posting another user’s doctored photo of D.B. holding a t-shirt with a police badge on it
• Re-posting another user’s photo of D.B. with the caption “stop snitching” over it, to which Edwards added, “Snitch ass bitch”
• Commenting on her own post in response to another user’s question about the identity of D.B., saying, “This guy is snitching! He snitched on my brothers! And lied about everything!”
• Re-posting another user’s photo of D.B. with the caption “Snitching like a bitch”
• Re-posting another user’s picture featuring hands in police handcuffs with the caption “Man up … Shut your mouth. Take the charge and don’t snitch.”
• “Liked” numerous other users’ posts of similar material

It’s important to note two things here. First, all of this activity took place after the trial was over, so this wasn’t a case of interfering with a trial by attempting to intimidating a witness. Second, although the posts revealed D.B.’s name and other personal information, none of these posts amount to a “true threat” or an “incitement” which would not be protected by the First Amendment.

Nevertheless, it was enough to send her to jail, and her conviction was upheld:

The court upheld Edwards’ conviction—not because her speech was a true threat or incitement (again, this statute doesn’t require proof of that), but simply because it was intended to retaliate and was intended to and did cause “harm”

As Eugene Volokh explains, that isn’t normally considered to be an exception to First Amendment protections. As long as you don’t make false statements of fact, it’s entirely legal to say things about people that you know will make their life difficult.

Volokh summarizes 18 U.S.C. § 1513(e) as applying to

• “Whoever knowingly,
• “with the intent to retaliate,
• “takes any action harmful to any person, including interference with the lawful employment or livelihood of any person,
• “for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense,

That’s extremely broad. Taken at face value, this would make it nearly impossible to criticize anyone who reported a crime to federal law enforcement, even when the crime is…not a very big one:

(@CrimeADay says “18 USC §1865 & 36 CFR §2.11 make it a federal crime to picnic in violation of the picnicking conditions in a national park.”)

So if someone reported you to the rangers for a picnicking violation, and you found out they owned a car dealership in your town, you would not be allowed to call out the dealership owners as joyless assholes, because that would be “retaliation” which could cause them to lose business.

It’s not even clear you have to have a connection to the crime to get in trouble. In theory, if I called out D.B. by name in this post for being a snitch ass bitch, I could be charged with a crime, as could you if you reposted it somewhere.

For that matter, if news broke that a major politician reported one of his neighbors as a “suspected terrorist” with no more evidence than that he was dark skinned and wore a turban, it looks like we would technically be in violation of the witness retaliation statute for attacking him on Twitter during election season, because that would interfere with his livelihood.

The good news is that the decision in the appeal did not reach the First Amendment issue for technical reasons, and it won’t set a dangerous precedent. Nevertheless, at least one federal prosecutor and one federal judge didn’t see a problem with this law.

In any case, this issue will probably end up in court again, and as Eugene Volokh says,

I hope that, when the First Amendment question is squarely presented to an appellate court, it will recognize that the statute (at least unless it’s sharply limited to threats, incitement, or nonspeech conduct) is unconstitutionally overbroad.

You can read Eugene Volokh’s whole post here.

Immediately after the terrible Easter Sunday bombings in Sri Lanka, the government there took the questionable step of blocking a bunch of social media sites.

There can be legitimate reasons for such drastic measures: If you know the terrorists are using cell phones or the internet to set off remote-detonated bombs, it makes a lot of sense to shut down those communications networks until the situation is resolved.

A less credible reason for shutting down communications is if authorities believe the terrorists are using cell phones or social media or whatever to coordinate their operation. People in our government have talked about developing similar capabilities — everything from being able to shut down cell towers in the middle of a terrorist incident to an “internet kill switch.” The idea is that we can disrupt the terrorists’ plans by denying their access to communications.

I’m not convinced by that argument, however, because it neglects the harm to civilian welfare from shutting down civilian communications. Protecting our national infrastructure has always been one of our domestic anti-terrorism priorities: If the FBI discovered a terrorist cell was going to shut down internet access in a major American city, you can bet the FBI would try to stop them. So doesn’t responding to a terrorist incident by shutting down the internet just give the terrorists a gift by causing fear and disruption?

The Sri Lankan government did not block social media for either of those reasons, however. Their reason was much worse:

The government has decided to temporarily block social media sites including Facebook and Instagram. Presidential Secretariat said in a statement that the decision to block social media was taken as false news reports were spreading through social media.

The Washington Post gives an example of the sort of thing they might be worried about:

Sanjana Hattotuwa, a senior researcher at Center for Policy Alternatives in Colombo who monitors social media for fake news, said he saw a significant uptick in false reports after the bombings Sunday.

[…] He cited two instances of widely shared unverified information: An Indian media report attributing the attack to Muslim suicide bombers, and a tweet from a Sri Lankan minister about an intelligence report warning of an attack.

As Joe Setyon of Reason points out, that’s kind of ironic:

Notably, neither of those instances appears to have been fake news. As previously mentioned, the Sri Lankan government does indeed believe Muslim extremists were responsible for the attacks. And intelligence agencies had been warned about a possible terror attack in recent days, as CBS News reported.

What’s going on here is that the Sri Lankan government is saying they want to protect against false news reports, but I’m pretty sure what they really want is to suppress news they don’t control. That’s usually the real motive when people in power complain about some unruly form of media.

What made me want to blog about all this was the disturbingly positive tone of the response from some corners of the media. Consider Global Voices, an activist organization which describes itself as

…an international and multilingual community of bloggers, journalists, translators, academics, and human rights activists. Together, we leverage the power of the internet to build understanding across borders. How do we do this?

• Report: Our multilingual newsroom team reports on people whose voices and experiences are rarely seen in mainstream media.
• Translate: Our Lingua volunteers make our stories available in dozens of languages to ensure that language is not a barrier to understanding.
• Defend: Our Advox team advocates for free speech online, paying special attention to legal, technical and physical threats to people using the internet to speak out in the public interest.
• Empower: Rising Voices provides training and mentorship to local underrepresented communities who want to tell their own stories using participatory media tools.

You’d assume that the Executive Director of an organization dedicated to “free speech online” and to that idea that “underrepresented communities” “whose voices and experiences are rarely seen in mainstream media” can “tell their own stories using participatory media tools” would be outraged over Sri Lankan censorship. As it turns out, not so much:

What really gets me about Sigal’s tweet is that he describes Sri Lankan censorship as a “signal for lack of platform trust.”

My God, who in their right mind cares how the Sri Lankan government feels about media platforms? Since when do we consider any government to be a reliable arbiter of news and truth, let alone the Sri Lankan government. They’re not the worst, but it’s not a good thing that Sri Lanka is rated by Freedom House as only “Partly Free” — with the addendum that the Sri Lankan press is “Not Free.” Furthermore, it turns out Sri Lanka’s President Maithripala Sirisena is an admirer of Philippine President Rodrigo Duterte’s murderous war on drugs, which is definitely not a good sign.

Is Sigal so naive that he believes the Sri Lankan government is really imposing censorship to protect their citizens from “fake news,” rather than employing the time-honored authoritarian trick of exploiting a tragedy to grasp for more power? (Later retweets in his timeline suggest he’s coming to his senses.)

Perhaps the worst response I’ve seen comes from Kara Swisher at the New York Times:

[…] when the Sri Lankan government temporarily shut down access to American social media services like Facebook and Google’s YouTube after the bombings there on Easter morning, my first thought was “good.”

Good, because it could save lives. Good, because the companies that run these platforms seem incapable of controlling the powerful global tools they have built. Good, because the toxic digital waste of misinformation that floods these platforms has overwhelmed what was once so very good about them.

One of the things going on in Swisher’s piece is the natural tendency of social media participants to overestimate how much of social media content is about the things they happen to be following. Those of us who follow politics and political issues tend to assume twitter is mostly about politics and political issues, but there is so much more to Twitter. We filter and curate our feeds, and then forget we are seeing what we want to see.

To be fair, sometimes the filtering is done by algorithm. I’ve seen people complain that every time they search for something on YouTube — even something innocuous — YouTube includes Nazi-themed videos in the results.

That never happens to me, not even if I do the exact same search. Unless these people think anyone to the right of Bernie Sanders is a Nazi, they’re doing something that makes the algorithm think they want to see those results. I want to ask them, “Are you, perhaps, clicking on the Nazi videos to see if they are what they appear to be? Are you visiting lots of racist websites because you are monitoring hate groups?” If so, the search engine is just trying to give you more of what clearly interests you. It’s not smart enough to tell when you’re just hate-reading something.

The same thing can happen with political issues on social media: If the algorithm figures out that’s what interests you, it will keep showing it to you. If you only follow people who repeat unverified rumors, you will see a lot of unverified rumors.

It pains me as a journalist, and someone who once believed that a worldwide communications medium would herald more tolerance, to admit this — to say that my first instinct was to turn it all off.

That’s an excellent instinct. Turning it off is a great response to fake news…for yourself. But please let everyone else make up their own mind.

In short: Stop the Facebook/YouTube/Twitter world — we want to get off.

Obviously, that is an impossible request and one that does not address the root cause of the problem, which is that humanity can be deeply inhumane. But that tendency has been made worse by tech in ways that were not anticipated by those who built it.

I noted this in my very first column for The Times almost a year ago, when I called social media giants “digital arms dealers of the modern age” who had, by sloppy design, weaponized pretty much everything that could be weaponized.

I resent the hell out of the word “sloppy” in that sentence. To the surprise of absolutely no one who knows anything about product development, it turns out that a first-generation world-wide social media site, available to two billion people, every day, for free…isn’t very good. That’s not sloppy, that’s the evolutionary curve of new technology. Just because a brand new piece of technology doesn’t work as well as it could doesn’t mean the inventors were sloppy.

“They have weaponized civic discourse,” I wrote. “And they have weaponized, most of all, politics. Which is why malevolent actors continue to game the platforms and why there’s still no real solution in sight anytime soon, because they were built to work exactly this way.”

Can we take a minute to regret the now widespread use of the word “weaponize” in the metaphorical sense? The first time I saw somebody use “weaponize” that way, it seemed edgy and inventive. It may even have been a fairly clear analogy. But now it seems everyone is talking about everything being weaponized. It’s quickly evolved into a way make something sound sinister without saying anything substantive.

Swisher goes on to discuss the role of social media in the aftermath of the recent mass shooting in New Zealand:

After the attacks, neither Facebook nor YouTube could easily stop the ever-looping videos of the killings, which proliferated too quickly for their clever algorithms to keep up. One insider at YouTube described the experience to me as a “nightmare version of Whack-a-Mole.”

New Zealand, under the suffer-no-foolish-techies leadership of Jacinda Ardern, will be looking hard at imposing penalties on these companies for not controlling the spread of extremist content. Australia already passed such a law in early April. Here in the United States, our regulators are much farther behind, still debating whether it is a problem or not.

By characterizing U.S. regulation of social media as “much farther behind,” Swisher makes it clear that she is on the side of the censorious thugs. The U.S. is not behind on regulating social media. Rather, New Zealand and Australia are weak on free speech and freedom of the press.

Heck, the shitbag authorities in New Zealand are actually trying to send ten people to jail just for distributing the video. A few of them, including a 16-year-old boy, were held without bail, and a guy named Philip Arps has plead guilty and is probably going to jail. Make no mistake, from the description in the news pieces, Arps is an awful human being with awful ideas, but he’s still being locked in a cage for the “crime” of sharing a video that someone in the government didn’t like. (Specifically, the someone in the government who didn’t like the video is David Shanks, Chief Censor in New Zealand. Fuck that guy.)

Getting back to Swisher’s article:

It is a problem, even if the manifestations of how these platforms get warped vary across the world. They are different in ways that make no difference and the same in one crucial way that does. Namely, social media has blown the lids off controls that have kept society in check.

This Is the Future Libertarians Want^TM.

These platforms give voice to everyone, but some of those voices are false or, worse, malevolent, and the companies continue to struggle with how to deal with them.

In the early days of the internet, there was a lot of talk of how this was a good thing, getting rid of those gatekeepers. Well, they are gone now, and that means we need to have a global discussion involving all parties on how to handle the resulting disaster, well beyond adding more moderators or better algorithms.

We can have a discussion. Discussions are fine. I’m all for discussions. Just don’t involve government thugs in your response to the “disaster,” because throwing people in jail is not a discussion.

It’s one thing to argue that Facebook (or Twitter or whoever) could improve social welfare by doing a better job of removing objectionable content, but recently social media critics have begun to advance the pernicious idea that social media companies should have a legal obligation to police the content that users post.

That’s actually been the normal rule in print media: The publisher is responsible for what they publish, because they make the decisions about what to publish. On the other hand, the distributor is not generally held responsible, because they don’t have knowledge of the content they are distributing. So if a columnist writes a defamatory article for a newspaper, the columnist can likely be successfully sued for libel, as can the newspaper, but newsstand owners need not worry.

For digital media, the prevailing rule is spelled out in Title 47 USC §230 — commonly referred to as “Section 230” — of the Communications Decency Act, which includes the clause “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

In a real way, these 26 words defined the form of the modern Internet. That protective clause is the reason I don’t have to carefully examine every comment on my blog to see if it contains libelous statements, and that protection is why I can have open comments. Section 230 is also the reason my hosting provider doesn’t have to worry about my content, which means its also the reason why I can have a blog. It’s also the reason Twitter and Facebook and Instagram can exist: These sites host billions of user-provided content items, and they couldn’t possibly afford to review every single one of them for actionable content.

Unfortunately, Section 230 is coming under attack in recent years. The most serious blow so far is the passage of FOSTA (the Allow States and Victims to Fight Online Sex Trafficking Act) which opened up websites to criminal and civil legal action for allowing ads for sex work. A bunch of websites closed down, and opportunistic lawyers launched lawsuits against offending sites such as Backpage, which had for years allowed ads for sex work.

Of course, as predicted months in advance by everyone who opposed FOSTA, Backpage was not the only victim. Lawyers naturally went after the deep pockets at Facebook for not preventing sex traffickers from using its services. Then, rather Amazingly, the lawyers went after Salesforce.com. To be clear, Salesforce.com has nothing to do with sex trafficking. They’re a Fortune 500 company that provides business software solutions loosely organized around customer relationship management. But apparently Backpage was one of their customers, and thanks to the hole FOSTA poked in Section 230, that may make them vulnerable to a lawsuit.

This is a horrible legal development, and it is paralleled by the recent cultural trend of blaming social media sites for content posted by their users. Although arguably an extension of “political correctness” from college campuses — where having to listen to ideas you disagree with is often treated as some kind of “verbal violence” — it seems to have spread to social media in response to the rise of Trumpism and the alt-right, with the accompanying attention given to racists, white supremacists, and more-or-less actual Nazis.

Suddenly, it was no longer enough to merely confront the Trumpists, racists, and what-have-you. Instead, people started yelling at Facebook and Twitter to “get rid of the Nazis.”

(As private enterprises, Facebook and Twitter have every right to refuse access to people who would ruin the environment they are trying to create for their users. But as always, the remedy for bad speech is good speech, not demanding that your ideological enemies be shut out of open forums.)

I’ve even seen people yelling at CloudFlare, of all things, for “protecting Nazis.” Cloudflare isn’t even a social media site. They’re about as content-neutral is it gets: They provide DNS, caching, optimization, and security services to millions of websites (including this one). It just takes a few minutes to sign up for protection, and many of the base services are free. One of those services is protection against denial-of-services attacks, and so people are mad at CloudFlare because they tried to crash Stormfront’s website and couldn’t.

I see this, and I wonder what’s next. Are people going to accuse utility companies of “supporting white supremacists” for selling them electricity or gas? Is Walmart going to be guilty of supporting racists if they sell toilet paper and cleaning supplies to Stormfront headquarters? There’s a certain level of madness to this, and I don’t know where it ends.

The other source of the trend toward holding social media platforms culpable seems to be the discovery of Russian intelligence efforts to influence the 2016 election through social media. It boggles my mind that Congress held hearings about social media and blamed Facebook for this, as if Facebook was supposed to carefully evaluate every single ad for its political content. That’s not what Facebook is built for. That’s not what social media is for.

In the 15th century, the Gutenberg press reduced the cost of publishing so much that almost anyone could afford to read written works. Now in the 21st century, the world wide web has reduced the cost of publishing so much that almost anyone can afford to publish written works. With costs that low, companies like Facebook don’t have the resources to mediate more than a tiny fraction of the material that flows through their platforms. Instead, readers are expected to curate their own reading choices. The role of the platforms has been to provide them with efficient means to do so.

I thought everybody understood this — that everyone realized social media was a nationwide electronic bathroom wall — and that we all knew it was going to be a wild ride. But now people are demanding that social media sites step up and do a job we never asked them to do before.

I have so many questions about the thinking here. Did people do this with telephones when they were the scary new technology? I’m sure people were upset by political calls during elections, but did they blame the phone company for them? Were TV stations blamed for allowing awful political ads to run? What about other misdeeds? Was Henry Ford hauled in to testify before Congress because gangsters were using cars to commit crime sprees? Or because teenagers were having sex in them?

Sigh.

I know that record labels and comic book publishers and video game houses have all been blamed for society’s ills at one time or another. So I understand on some level that this kind of moral panic at new media is not unusual.

I guess I was hoping that, just this once, we had skipped that miserable tradition.

The New York Times is reporting that conspiracy theorist Alex Jones has hired Marc Randazza to defend him against the lawsuit filed by the families of the Sandy Hook shooting victims over Jones’s claims that the shooting was some kind of hoax.

Since days after the 2012 shooting at Sandy Hook Elementary School in Newtown, Conn., Mr. Jones has spread bogus theories that the families were “crisis actors” in a government plot to confiscate Americans’ firearms. The families have endured online abuse, physical confrontations and death threats from Mr. Jones’s devotees.

Unfortunately, the Times story finds an unhelpful angle, as telegraphed by its title, “Lawyers for Neo-Nazi to Defend Alex Jones in Sandy Hook Case.” Reporter Elizabeth Williamson probably did not write that headline, but she did write the rest of the story:

Alex Jones, an online conspiracy theorist who claims the Sandy Hook massacre that killed 20 children and six adults was a hoax, has hired lawyers representing a founder of the neo-Nazi Daily Stormer website to defend him against defamation claims brought in Connecticut by families of seven Sandy Hook victims.

[…]

Marc Randazza and Jay Wolman of the Las Vegas-based Randazza Legal Group are defending Mr. Jones in Connecticut. The lawyers also represent Andrew Anglin, the co-founder of the Daily Stormer, who is being sued for harassment by a Montana woman after Daily Stormer followers subjected her to a torrent of anti-Semitic slurs and threats. Mr. Anglin has cited Mr. Jones as an early influence.

It’s a general principle of legal ethics that everyone is entitled to a lawyer. Alex Jones and Andrew Anglin are no exception. They are entitled to a lawyer, so somebody in the legal profession has to represent them. In this case, they’ve picked Marc Randazza.

Scott Greenfield, who manages to write about all legal things before I do, has found some dumb reactions to Randazza’s representation of Jones, and one of them is a common but tiresome response from Above the Law‘s Elie Mystal, who should know better.

And I respect what he’s doing. No, I don’t agree. I don’t think he should be doing it. Just because Nazis deserve a legal defense doesn’t mean you’re a good person for defending them.

That’s a slight variation of something lawyers must hear a lot when they defend unlikable clients: “Just because somebody has to represent them, that doesn’t mean you have to do it. You could have said no.”

That’s a weak argument. Everyone, including guys like Alex Jones and Andrew Anglin, has a right to legal representation. As an ethical matter, the legal profession, considered broadly as an institution, owes them a duty of defense, no matter how unpleasant it may be. And when faced with a repellent duty that someone has to fulfill, there is no virtue in refusing the duty when you that know someone else will have to do it. If Randazza had refused to take this case, then some other poor lawyer would be stuck in his place, having to endure the same stupid crap.

Beyond that, guys like Alex Jones and Andrew Anglin deserve a defense simply because our legal system is built around the assumption that they will get one. Our adversarial system encourages both sides to present their strongest and most aggressive argument in court. So although Jones and Anglin may be bad people, they aren’t necessarily as bad as the opposing party accuses them of being. That doesn’t mean they did the specific things that the lawsuit alleges. That doesn’t mean the people suing them are entitled to everything they’re asking for. A one-sided proceeding does not produce justice. Which is why everyone deserves a defense.

I suppose you could ask, even if everyone deserves a defense, why it is that Randazza seems to represent so many figures from the alt-right.

…he’s taken on a number of far-right clients, including Daily Stormer founder Andrew Anglin, the alt-right site GotNews and its founder Chuck Johnson, right-wing internet personality Mike Cernovich, and the alt right-beloved forum 8chan. Last month, he also entered the case of alt-righters and neo-Nazis accused of conspiracy to riot in Charlottesville.

I think the reason is probably the obvious one: They pass his name around between them. You defend dentists against malpractice suits, you get calls from other dentists. You defend cops from brutality claims, you get calls from other cops. And you defend alt-right trolls, you get calls from other alt-right trolls. That’s just how word-of-mouth marketing works.

(If I had to guess — and guessing is much less work than investigating — I wouldn’t be surprised if Mike Cernovich was the key. Randazza is a long-time legal blogger at Legal Satryicon, and long before Cernovich was a leading figure on the alt-right, he had a perfectly normal legal blog called Crime and Federalism, which he shared with Connecticut lawyer Norm Pattis. In those early days, the legal blogosphere was a small community, and Cernovich almost certainly would have been aware of Randazza. I was part of that community, and I knew both of them.)

Marc Randazza is not some kind of “Nazi lawyer.” He’s a well-known First Amendment lawyer who has helped a lot of different kinds of people, sometimes for free. In a small way, I’m one of them. Randazza’s blog has one of the most hilariously pugilistic Terms and Conditions pages I’ve ever seen, and when I asked him something about it, he told me I could use it on my blog if I wanted to, and he let me list him as the legal contact for Windypundit.

At another time I was thinking of registering a “Windypundit” trademark, and Marc gave me some free advice. He even offered to do the registration for me. (I didn’t take him up on it because it felt funny to ask him to work for free, even though he’d offered.) It would be misleading to say Marc Randazza is my lawyer — he’s never represented me in anything — but I wouldn’t be surprised if our minor interactions meet the technical legal definition of a lawyer-client relationship.

What it comes down to is this: When planning the military defense of a country, you want the battle against the invaders to start at its borders, not in its heartland and cities. The same is true when defending free speech. We want the battles to occur at the fringes, with the weirdos and deplorables, because if we’re fighting for the freedom of speech of people who say ordinary things, we’ve already lost the war.

Marc Randazza is one of the people fighting for us at the fringe.

A while back, the Los Angeles Times published an op-ed by Laura Beth Nielson arguing that there’s a case for restricting hate speech.

As a sociologist and legal scholar, I struggle to explain the boundaries of free speech to undergraduates. Despite the 1st Amendment—I tell my students—local, state, and federal laws limit all kinds of speech. We regulate advertising, obscenity, slander, libel, and inciting lawless action to name just a few. My students nod along until we get to racist and sexist speech. Some can’t grasp why, if we restrict so many forms of speech, we don’t also restrict hate speech.

That’s where things get wobbly:

The typical answer is that judges must balance benefits and harms.

Okay…this feels awkward… Nielsen is a professor of sociology and the director of the legal studies program at Northwestern University, and she’s also a research professor at the American Bar Foundation, whereas I’m just a loudmouthed blogger. And yet…I’m pretty sure she’s wrong.

The limits on our First Amendment rights are narrowly defined, and to the extent that those rights are balanced, it’s not by judges. First Amendment lawyer Ken White explains the distinction, in another LAT piece:

Censorship advocates often tell us we need to balance the freedom of speak with the harm that speech does. This is arguable philosophically, but it is wrong legally. American courts don’t decide whether to protect speech by balancing its harm against its benefit; they ask only if it falls into a specific 1st Amendment exception. As the Supreme Court recently put it, “[t]he First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.”

Back to Nielson:

At the same time, our regime of free speech protects the powerful and popular. Many city governments, for instance, have banned panhandling at the behest of their business communities. The legal justification is that the targets of begging (commuters, tourists, and consumers) have important and legitimate purposes for being in public: to get to work or to go shopping. The law therefore protects them from aggressive requests for money.

Yeah, I’m not a big fan of some of those anti-panhandling laws either.

Consider also the protections afforded to soldiers’ families in the case of Westboro Baptist anti-gay demonstrations. When the Supreme Court in 2011 upheld that church’s right to stage offensive protests at veterans’ funerals, Congress passed the Honoring America’s Veterans’ Act, which prohibits any protests 300 to 500 feet around such funerals.

Again, Nielson is some kind of expert and I’m not, but…I’m pretty sure that particular law is written in a way that is viewpoint neutral: It doesn’t prohibit protests based on the content of the protesters’ speech. In fact, it doesn’t prohibit protests at all. It prohibits disrupting veterans’ funerals.

Nielson does go on to make an important point in what I think is the best part of her piece:

So soldiers’ families, shoppers and workers are protected from troubling speech. People of color, women walking down public streets or just living in their dorm on a college campus are not. The only way to justify this disparity is to argue that commuters asked for money on the way to work experience a tangible harm, while women catcalled and worse on the way to work do not — as if being the target of a request for change is worse than being racially disparaged by a stranger.

In fact, empirical data suggest that frequent verbal harassment can lead to various negative consequences. Racist hate speech has been linked to cigarette smoking, high blood pressure, anxiety, depression and post-traumatic stress disorder, and requires complex coping strategies. Exposure to racial slurs also diminishes academic performance. Women subjected to sexualized speech may develop a phenomenon of “self-objectification,” which is associated with eating disorders.

These negative physical and mental health outcomes — which embody the historical roots of race and gender oppression — mean that hate speech is not “just speech.” Hate speech is doing something. It results in tangible harms that are serious in and of themselves and that collectively amount to the harm of subordination. The harm of perpetuating discrimination. The harm of creating inequality.

This part of Nielson’s argument is a solid explanation of why hate speech is unethical. In fact, I would go further: One of my recurring themes around here, usually in connection with economics, is that just because some benefit or cost isn’t tangible doesn’t mean it isn’t real. So even if people hurt by hate speech didn’t suffer tangible harms, they may still have suffered harm. For lack of a better word, their “hurt feelings” matter.

The hard part, however, is figuring out what to do about it. It is here that Nielson’s argument runs into the usual problems.

Instead of characterizing racist and sexist hate speech as “just speech,” courts and legislatures need to account for this research and, perhaps, allow the restriction of hate speech as do all of the other economically advanced democracies in the world.

Many readers will find this line of thinking repellent. They will insist that protecting hate speech is consistent with and even central to our founding principles. They will argue that regulating hate speech would amount to a serious break from our tradition. They will trivialize the harms that social science research undeniably associates with being the target of hate speech, and call people seeking recognition of these affronts “snowflakes.”

But these free-speech absolutists must at least acknowledge two facts. First, the right to speak already is far from absolute. Second, they are asking disadvantaged members of our society to shoulder a heavy burden with serious consequences. Because we are “free” to be hateful, members of traditionally marginalized groups suffer.

I acknowledge both of these facts, but I don’t think they get Nielson where she wants to go.

Actually, Nielson never says where she wants to go. Beyond a vague statement that “courts and legislatures need to…perhaps, allow the restriction of hate speech,” she never spells out what remedy she wants for the problem she identifies. So let’s get that out in the open: In order to protect members of traditionally marginalized groups from hateful speech, Nielson wants to make hate speech a crime.

How do you think that will turn out?

Pop quiz: If a middle-aged white guy walking down the street in a business suit calls a black woman a “cunt,” and at the same time in a different part of town a young black male walking down the street in baggy pants and a do-rag calls a white woman a “cunt,” which one of them is more likely to be arrested for hate speech? Which one is more likely to be stuck in jail because they can’t make bail? Which one is more likely to be pressured into pleading guilty because they are locked up? Which one is more likely to serve time in a cage? Which one is more likely to have trouble finding a job because they have a criminal record?

Oh, I’m sure there will be a few high-profile prosecutions of racist white guys — maybe some prosecutor will try to make his bones prosecuting Milo Yiannopoulos or Richard Spencer — but you’re kidding yourself if you think most of the arrests won’t be of people from the same groups that always get arrested for petty crimes: Blacks, Hispanics, poor people, immigrants, and the mentally ill.

History has shown that creating whole new reasons for incarceration rarely works out well for members of traditionally marginalized groups. Make hate speech a crime, and sooner or later we’ll be reading stories about a 45-year-old homeless black man killed by cops who were arresting him for a racist slur.

I’ve been taking some mild heat on Twitter for this response:

Honestly, I can’t even remember why exactly I don’t like Gavin McInnes. Somewhere between his annoying appearances on The Independents and the amazingly awful crap he wrote for the cesspool that is Thought Catalog, I developed my opinion that he is a huge asshole. However, I also support a broad concept of free speech, so I support his right to speak unmolested. The combination just feels a bit weird.

I had a similar response earlier to the news that reputed neo-Nazi Richard Spencer got sucker-punched on video.

There’s something I find fascinating about the tension I feel when this kind of thing happens. I despise neo-Nazis and their fellow travelers, but I support their right to free speech. Those of us who hate what they’re saying have every right to criticize them, and the people who invite them to speak, and the people who come to hear them. But we do not have the right to use violence (or the threat of violence) to stop them from speaking, or to otherwise prevent people from hearing them. That’s not how freedom of speech works.

It’s tempting to allow a few exceptions — Nazis for God’s sake! — but exceptions have a way of swallowing the rule. Shortly after everyone got so excited about a Nazi getting attacked, protesters at a university apparently became violent enough that they shut down a speaking event by a gay Jewish man. That gay Jewish man was Milo Yiannopoulos, a noted alt-right troll, so lots of people cheered his being shut down for his “hate speech,” but note how quickly some people went from cheering a neo-Nazi getting silenced to cheering the silencing of a man the real Nazis would have sent to the gas chamber twice over.

If nothing else, this kind of thing seems like bad strategy. We’ve just elected a president who campaigned against “political correctness” blown all out of proportion, and now protesters are handing him real examples of political correctness gone too far. He even tweeted about the Milo incident and threatened to cut UC Berkeley’s funding. That’s probably an empty threat, but you can bet a lot of his followers agreed with it. And given Trump’s own hatred of free speech, is it really a good idea to be making the argument that some speech deserves to be suppressed? Trump would almost certainly suppress speech that the protesters like.

(Also, this incident got Milo far more attention than he’s had in months. Was that really a good result for the protesters?)

I firmly believe in freedom of speech, and for reasons both principled and practical, I have no trouble supporting the rights of Gavin McInnes, Milo Yiannopoulos, and Richard Spencer to speak and be heard.

However…I still enjoy it when bad things happen to to assholes. Especially Nazi assholes.