Free Speech News Round-Up 6 | July 14, 2019

Some readers may find some of the content here disturbing. Reader discretion is advised

In free speech news this week, President Trump can no longer censor his critics on Twitter, Trump assaults free speech and a free press, and (since I am a day late in posting this), a neo-Nazi is fined $14 million for targeted harassment of a real estate agent.

Second U.S. Circuit Court of Appeals Beats Back Latest Trump Censorship on Social Media

In the latest court loss for the Trump administration, the Second Circuit Court of Appeals ruled that Trump cannot block Twitter followers from his official White House account.1 The lawsuit, filed by the Knight First Amendment Institute, argued that individuals could not be blocked from official government social media accounts on First Amendment grounds.2

Trump's counter-argument in this case was rather weak:

The government had argued that Trump acted as a private Twitter user when he blocked people on the social media platform, "because the function is available to all users." But the panel of judges said that argument "founders in the face of the uncontested evidence" that Trump's account is "one of the White House's main vehicles for conducting official business."

The availability of the block function is totally unrelated to the case at hand. This seemed to be an easy ruling. We'll see if Trump appeals – or actually unblocks users.

President Trump Once Again Attacks Free Speech

President Trump recently held a White House Social Media Summit where he showed a complete lack of understanding of free speech.3 During the Summit:

He talked about how Silicon Valley is admired for their technology and how smart they are, but that they aren’t “using that brilliance” fairly. “They have to do that.” “And we don’t want to stifle anything, we certainly don’t want to stifle free speech. But that’s no longer free speech,” said Trump. “See I don’t think that the mainstream media is free speech either, because it’s so crooked, it’s so dishonest.” “So to me, free speech is not when you see something good and then you purposely write bad, to me that’s very dangerous speech, and you become angry at it,” said Trump. “But that’s not free speech.” He continued, talking about CNN and the use of the phrase “fake news” in the mainstream press. “The worst fakers of all” are using the phrase, he said. “They’ve turned it around!” “We’re just not going to allow it to happen like this,” he said, returning to his commentary about what isn’t free speech. “We’re not going to be silenced.”

The wild incoherence of this speaks for itself.

Neo-Nazi Who Publishes Daily Stormer is Fined $14 million for Targeted Harassment

Andrew Anglin, the neo-Nazi who publishes the Daily Stormer has been fined $14 million by the Chief Judge for the District of Montana today for launching a targeted harassment campaign against Tanya Gersh, her co-workers, and her family.5 The judge ruled that Anglin had engaged in “'particularly egregious and reprehensible' behavior” and that the fine was needed to “'punish Anglin and deter him from engaging in such conduct in the future.'” Anglin did not even bother to defend his actions. According to Buzzfeed:

Anglin has also refused to participate in much of the court proceedings on the case, including scheduled depositions in April. Anglin's attorneys had filed a motion that would have excused him from appearing in person for a deposition, but the judge denied it. Anglin's refusal to appear in person for a deposition then prompted the court to enter the default ruling against him

The campaign Anglin unleashed against Gersh was truly heinous. According to the Southern Poverty Law Center (SPLC) that was part of the litigation:

Gersh, her husband and then-12-year-old son received more than 700 harassing messages between December 2016 and April 2017, when the complaint was filed. She has continued to receive harassing and threatening messages in the two and a half years since the initial onslaught. The campaign escalated to the point that in early 2017, Anglin planned an armed march in Whitefish that he threatened would end at Gersh’s home. Anglin promoted the march – which never materialized – with an image that superimposed Gersh, her son and two other Jewish residents on a picture of the front gate of the Auschwitz concentration camp

6 In terms of free speech this event is interesting in two respects. First, it shows how the far-right uses free speech. They often use "free speech" as a means of redirecting arguments away from their odious beliefs, but their identification with the phrase (since they do not seem to understand the meaning) apparently goes deeper than that. In the suit filed by the SPLC back in 2017, they list all the horrific messages Gersh received. Among them are ones like these:

Gersh: STOP BEING AN ANTI-FREE SPEECH, ANTI-AMERICAN (rather, UN-American!) Bolshevik Jew(!)and please APOLOGIZE...

and

Dear Tanya, I realize that as a Jew your ancestors have zerotraditions of free speech beyond the shtetl, but Americans (whose great-great-grandparents weren’tBolshevik Communists) would greatly appreciate if you STOPPEDpersecuting freedom-loving, Christian Americans, STOP BEING A JEWISH BOLSHEVIK.

7

Here, neo-Nazis are invoking free speech, but not to redirect away from odious beliefs. They are invoking it, seemingly without any reason or in regards to any action taken by Gersh. They use “free speech” in the same way, but in the opposite direction, of the way they use “un-American” or “Bloshevik.” That is, for them, free speech has no meaning – it's just a term they identify with rather than against – and which is occasionally useful as a distraction.

The SPLC case also addresses whether or not Anglin is within the protections of the First Amendment to lead a targeted harassment campaign. Anglin's lawyers made a motion to dismiss the case on First Amendment grounds in May of 2018 and the judge denied the motion. For those familiar with First Amendment jurisprudence – a group which often has little overlap with those who talk about free speech online – the Supreme Court has consistently ruled that speech can be limited in a number of ways and that some types of speech deserve greater protection than other types. In particular, speech that is of public concern and directed at public officials is accorded stronger protections than issues of private concern directed at private officials (as in this case). Courts will often attempt to balance these two in their deliberations, as the judge did here:

What matters, Gersh contended at oral argument, is whether after balancing the competing interests at stake and considering the record as a whole, the speech at issue is entitled to First Amendment protection. Gersh is correct.

8

That is, she is correct that this the proper way to address the question of whether or not Anglin's actions deserve First Amendment protections. Clearly, they did not.