John Adams said that “[o]ur Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” In other words, without the moral restraints that people of faith impose upon themselves, the Constitution is of little use. The Constitution frames the rights that inhere in every American. However, implicit in Mr. Adams’ dictum is the idea that with every right there is a concomitant responsibility. Without the exercise of that responsibility, there is no liberty — just chaos.
The Constitution is cited for a wide variety of positions by people who have never actually looked at it or have a clue as to what it actually says. In particular, the First Amendment is cited by many who wouldn’t recognize it if it rose up and bit them on the butt. In the interest of public enlightenment, let’s take a moment to read the apposite portion of the First Amendment: “Congress shall make no law … abridging the freedom of speech, or of the press …”
The first thing to note is that the only entity upon whom the First Amendment places limitations is Congress! No one else. It is not directed at private citizens. When someone complains that a private individual or business is unlawfully restricting his right to free speech, that someone is demonstrating his ignorance. If the someone about whom he is complaining is not the government, then the protections of the First Amendment have no application. If someone comes into your business premises and starts mouthing off about something or other, you can have him ejected. If your Thanksgiving table is quickly turning uncomfortable because your teenage niece who just started college is screaming at everyone because she just “learned” that they are “deplorable bigots,” you have the right to tell her to put a sock in it. And if she claims that you are thereby impinging upon her First Amendment right to freedom of speech, you can simply explain that you are neither the Congress nor any other arm of the government, but that she is in your home, where you make the rules as to what is acceptable and permissible speech.
Likewise, the government has no authority under the Constitution to force Facebook or Twitter or any other entity to publish or refuse to publish anything. Facebook and Twitter have the right under the First Amendment to publish or not to publish what they will. Like the press, social media are exempt from governmental restriction save for the most limited circumstances — such as shouting “fire” in a crowded theater — in which there is significant risk of a clear and present danger of irreparable harm to public safety (to paraphrase Justice Holmes in the 1919 case of Schenck v. United States). Thus, the government has little jurisdiction over policing the content of social media any more than it has the right to police other forms of speech.
What are “social media?” Social media as commonly understood means online communication that depends on user-generated content. Typical websites and blogs are not generally included in the definition of social media. Only certain people can post to these sites and there are significant restrictions placed by these sites on the types of content that get uploaded. We can understand social media to be a wide range of things such as messaging apps like Twitter, profile-based platforms such as Facebook and video portals such as YouTube.
For most of history, only a few have had access to the means of distributing information, be it factual or opinion. The monumental stelae left by the Pharaohs were early examples of communication by mass media. Not a whole lot of folks had the ability to “publish” their own stelae, so the Pharaohs were able to incise whatever they wanted on those stones without concern about anyone else “publishing” a competing view. Before the invention of the printing press in the 15th century, the ability to distribute ideas and dissenting viewpoints was limited. Most written communications — parchment or paper scrolls — were shared among the small minority of people who were literate, primarily royalty (government), clergy and the merchant classes.
The printing press revolutionized the ability to spread knowledge and information and for the first time, information could be distributed widely by anyone, not just someone in power. Likewise, it could be viewed by anyone with access to the printed document. It became infinitely easier to spread disparate views and opinions. A perfect example of this was Thomas Paine, who has been called the “father of the American Revolution.” His pamphlet, Common Sense, crystallized sentiment for independence in 1776. During its first three months, 100,000 copies were distributed. It is difficult to imagine the American Revolution succeeding without the galvanized opinion that was stoked by Thomas Paine and his fellow pamphleteers.
In the 19th and 20th centuries, in addition to the explosion of forms of mass communication, such as multiple competing newspapers and magazines, as well as radio and television, we began to see limited growth in the ability of an individual to publish his own ideas, with the invention of the typewriter, mimeography, xerography and, ultimately, the computer. However, in terms of the potential to spread information, misinformation and opinion, the invention of the Internet (not by Al Gore) was a monumental development, far greater than that of the printing press, movies or television. Through the Internet and social media, anyone who has access to a computer now has the potential to contact every other person on Earth with similar access. Back in just 2005, social media penetration in the United States was just five percent and most of the users of the rest of the internet didn’t even know what it was. Now, just under 70 percent of Americans and more than 2.6 billion people globally, use social media.
The Internet revolution has enabled individuals to bypass the established organs of communication and, through social media, to spread information and arguments that cannot be contained. For example, although the ordinary organs of conventional media — newspapers, radio, television — have opposed him at every turn, Donald Trump has been able to override the mass media to a significant degree and speak directly to the American public without filter or censorship because he has access to Twitter.
Along with the benefits resulting from the ability to convey opinions across the globe, the Internet revolution has also loosed the dogs of chaos. As recently as a few weeks ago I had never heard of “4chan” or “8chan.” These “imageboard websites” surfaced to public awareness only when it was learned that many of the perpetrators of recent mass murders were habitués of these “boards.” The most salient factor in understanding 4chan and 8chan is that they do not have a registration system. That is to say, users can post with complete anonymity (they cannot be traced) and there are minimal rules on posted content. These boards originally started as online meeting places for video game enthusiasts — thus the meme of the typical user being a loner in pajamas sitting in his mother’s basement.
As video games became more violent, those who were attracted to such violence found and fed on each other. It became a subculture whose putrid content had no bottom. Originally thought of as havens for the “alt right,” these Boards are now overrun by the untold sick leftists, nihilist, anarchists, etc., who frequent them. Antifa seems to make use of these boards for transmitting its violent plans. The government is constantly playing catch-up ball because the burden of showing “clear and present danger” under the exceptions to the First Amendment is high indeed. Following the recent massacres in El Paso, Texas and Dayton, Ohio, the site was taken off the “clearnet” (that is, the publicly accessible internet as opposed to the “dark web,” that part of the web not indexed by traditional search engines), not by the government but by the administrators of the various search engines. The removal of 8chan shows how private parties can do the necessary when the government is constrained by the Constitution from censoring.
In every generation, for every opinion, there has always been someone who wanted to spread a counter opinion — sometimes scurrilously. Deep in the copper mines of Timna, archaeologists have found 3,600-year-old crude wall carvings depicting Queen Hatshepsut in a “compromising” position with her chief advisor. Some slave sweating his life away deep in a desert mine “published” his pornographic opinion of his ruler. It can fairly be stated that these drawings were not suitable for work. But his opinion never made it out of that mine and was probably seen by fewer than a handful of his fellow slaves. In early America, there were pamphleteers who published deeply defamatory opinions. One, James Callender, published intensely defamatory materials attacking, among others, the Constitution, George Washington and Thomas Jefferson. Washington, Jefferson and others did all that they could to shut him up. From all indications, Callender was not a nice person.
The odious content that can be found on social media is not a new thing (just ask Hatshepsut) but it can reach infinitely more people than ever before. Even excluding inherently subversive users, the development of social media has enabled any and everyone to vent at will without consequence. The resultant damage to private individuals who are the targets of these excrescences is often incalculable. I have a very dear friend who is a decent and wonderful man in every sense of the word. A few weeks ago, someone claimed that she had been intimidated by him. The person published a photo of him so that he could be identified. An almost endless stream of comments ensued, excoriating my friend using the vilest of names, many from people from across the country with no possible knowledge of any of the surrounding circumstances.
I telephoned my friend with great concern. He explained to me what led up to the event. His explanation put an entirely different slant on the entire matter. I certainly have no first-hand knowledge of what really happened, but my experience of this man tells me that he had no intention of intimidating anyone. At any rate, he was certainly entitled to the benefit of the doubt. So, here we have a case of someone posting a vicious diatribe against a non-public person, supported by numerous comments from people who have absolutely no connection or knowledge of the circumstances, including multiple and repeated slanders against my friend and his business. There is no excuse for damaging the good name of a truly decent man. But with social media, it is unimaginably easy to destroy someone casually and do enormous harm to his family and his business for no obvious reason other than to harass and do damage.
Unfettered access to social media has enormous benefits, but also has the potential for enormous harm. As stated above, in a civil and decent society, every right has a concomitant responsibility. Every American has the right to express himself freely and, by virtue of the First Amendment, without government interference. However, if we fail to exercise the restraint motivated by a self-imposed sense of decency, such failure will tip us into the abyss, following every other failed society in the history of mankind.
Stuart Kaufman is a retired lawyer, investment banker and businessman. He relocated from New York to Mount Pleasant in 2012. A friend recently told him that he has been a South Carolinian all of his life ... but he just didn’t know it.