Where Colin Kaepernick and Facebook Diverge

Colin Kaepernick "took a knee" to express his political views and created a national free speech controversy that embroiled the NFL.  By its recent censoring of mostly conservative users, Facebook has reignited that national conversation about the boundaries of free expression.  The contrast between these two situations offers insights into the uniquely American experiment in free speech rights and the particularly precarious position of those rights in 2019.

Mr. Kaepernick did not possess a "right" to protest at a football game — he was there under contract with a private employer, and he had specifically agreed not to disrupt games as a condition of (highly paid) employment.  Neither did conservative users of Facebook possess a "right" to post controversial (if legal) content there.  The Constitution proscribes government, not private, action.

This makes perfect sense.  An employee at a restaurant is not free to pontificate about the merits of violent opposition to white power structures while taking an order or serving food, nor a Nazi to deny the Holocaust while he fetches your items at the auto parts store.  But there are some aspects of the NFL-Facebook comparison that bear deeper scrutiny. 

The spectators at NFL games have indirectly paid for players (of whatever stripe) to keep their opinions to themselves; users of Facebook have indirectly paid for an open forum.  Kaepernick was paid to be silent; conservative commentators on Facebook get paid for controversial speech (their stock in trade).  The NFL is not a speech platform, but sought to prohibit all controversial speech; Facebook is a speech platform and seeks to filter speech through its corporate ideological lens.

Brian Amerige, a longtime insider at Facebook who witnessed this "evolution" in its corporate culture, relates:

By the time the 2016 U.S. election craze began (particularly after Donald Trump secured the Republican nomination)... things had changed.  The combination of Facebook's corporate encouragement to "bring your authentic self to work" along with the overwhelmingly left-leaning political demographics of my former colleagues meant that left-leaning politics had arrived on campus.  Employees plastered up Barack Obama "HOPE" and "Black Lives Matter" posters.  The official campus art program began to focus on left-leaning social issues.  In Facebook's Seattle office, there's an entire wall that proudly features the hashtags of just about every left-wing cause you can imagine — from "#RESIST" to "#METOO."

The United States Supreme Court has delineated the fragile contours of American free speech jurisprudence through numerous painstaking analyses.  The line for "hate speech" was drawn in the seminal KKK case Brandenburg v. Ohio (395 U.S. 444, 1969): "Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."  Thus, the KKK is "free" to advocate violence in general against blacks, but organizing a lynching is criminal; Nazis have a protected "right" to advocate for white supremacy, but if they engage in anti-Semitic violent acts, they will be prosecuted; Antifa advances physical confrontation as an ideology, but it remains a crime to actually physically assault others solely because their T-shirts boast a Swastika, Confederate flag, or MAGA logo.  This is indeed a fine line, yet wise minds have drawn it for us.

But this restriction on government does not apply to Facebook.  Mr. Amerige summarizes Facebook's unique speech filtration methodology:

It's not a coincidence that it was around this time that Facebook's content policy evolved to more broadly define "hate speech."  The internal political monoculture and external calls from left-leaning interest groups for us to "do something" about hateful speech combined to create a sort of perfect storm...The policy aims to protect people from seeing content they feel attacked by... Offense isn't a clear standard like imminent lawless action. It is subjective — left up to the offended to call it when they see it.

This is consistent with Facebook's own statement of its policy:

[O]ver the past three months our conversations with members of civil society and academics who are experts in race relations around the world have confirmed that white nationalism and white separatism cannot be meaningfully separated from white supremacy and organized hate groups….Going forward, while people will still be able to demonstrate pride in their ethnic heritage, we will not tolerate praise or support for white nationalism and white separatism.

Yet Facebook has not banned left-wing groups who actively organize and encourage violent events.  Antifa has a proven track record of organizing violent street protests; blocking traffic; and antagonizing motorists, pedestrians, and veterans, as well as exposing police to injury.  Then there are the property damage and other anarchic activity, often aided by Black Lives Matter, a group that similarly incites violence, particularly directed toward police officers.

Facebook supports Antifa's platform, but the Anti-Defamation League offers a different perspective:

Antifa have expanded their definition of fascist/fascism to include not just white supremacists and other extremists, but also many conservatives and supporters of President Trump.  All forms of antifa violence are problematic...  Additionally, violence plays into the "victimhood" narrative of white supremacists and other right-wing extremists and can even be used for recruiting purposes.

The conservatives blocked by Facebook fell on the Brandenburg line of protected speech; Antifa and BLM continue to use Facebook as a means to organize and publicize violent events which are well over the line Brandenburg labeled as unprotected hate speech — the incitement of imminent lawless action.   What's more, these conservative voices are being silenced just as a coup to entrap a sitting U.S. president is being revealed.

The NFL did not endorse a particular political view; it sought to objectively exclude all politics.  Imagine if it had kicked Kaepernick out but then routinely permitted players to perform Nazi salutes and wear swastikas at half-time.  Yet the NFL would then be on the correct side of the Brandenburg line, because the Nazis do not promote imminent violence, while BLM routinely does.

Facebook is the opposite, then, of the NFL, and this is disturbing: "Being a private company, Facebook is entitled to host whom they want and ban whom they want.  But in the 21st-century world, social media such as Facebook, Instagram, and Twitter have changed the way the world communicates."  Apparently, Russian hackers must be prevented from using Facebook to influence American politics, but Facebook itself can influence the culture such that those inciting imminent violence have an open platform, while those opposing them (without advocating violence) have been silenced.

It is the American left, embracing the dangerous ideologies of groups like BLM and Antifa, and supported by media behemoths like Facebook, that seeks to censor others in the name of liberty.  Consider the repeated attacks on speakers at once prestigious colleges across the country.  There are no Nazis knocking on doors to remove menorahs — but those with Confederate flags had best beware!

Image: Kate via Flickr.

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