The False Fire This Time

Look, Facebook can ban whomever they want.  People screaming about First Amendment violations are either missing the point, ignorant about what the First Amendment is, or both.  The First Amendment just keeps the government from restricting free speech--except when it doesn't.  The First Amendment says nothing about whether private businesses can limit their customers' ability to express themselves.  Indeed, if someone stood on a table at a bowling alley and started screaming about how the leaders of the worldwide Jewish conspiracy were abducting and murdering children to drink their blood and gain immortality, then the owner of the bowling alley would be within his rights to toss the guy out on his ass--no matter how many frames he had left to roll.

OK, Facebook isn't a bowling alley (I checked). And sure, one could argue that it's a bit disconcerting for a platform whose whole raison d'etre is to promote conversation--stated raison d'etre, at any rate; we know it's whole purpose it to sell users' attention spans to advertisers, but let that go for now--for a service whose purpose is to allow people to connect, to enforce restrictions on people's ability to do so.

But even the government--which isn't "allowed" to restrict free speech--has imposed limits on what people can legally say.  Something about fires and crowded theaters comes to mind.  So how much more allowable, then, from a strictly legal standpoint, is it for a private company to impose limits?

A lot more.

While anyone with a shred of sanity or sense of civic responsibility can applaud Facebook's decision to join Twitter and YouTube in banning The Former Guy, however, one can still feel unease at the power of unelected billionaires to serve as gatekeepers for the limits of public discourse.  Still, I don't think this case is quite as complex as people have made it out to be.

Let's go back to the idea of falsely yelling fire in a crowded theater. (That "falsely" is often left out when people reference Oliver Wendell Holmes' famous analogy, but it's pretty important.  After all, if the theater really is on fire, YELL AWAY!)  Holmes was arguing that the government can restrict dangerous speech, speech that presents a clear and present danger to public safety.  So the government can prosecute dangerous speech, but that doesn't forbid non-governmental actors from intervening and stopping dangerous speech.  If some lunatic tries to start a panic by falsely yelling fire in a crowded theater, you don't need the cops to  make him stop.  The usher or the popcorn guy or even just a concerned fellow audience member could get up and hit the guy with a stick.  Or, you know, just tell him to shut the fuck up.  Facebook is the popcorn guy in this analogy.

So, yeah, if The Former Guy is going to continue to spread lies and whip his followers into bloodlust--and he's shown no inclination that he won't continue to do so--then all these social media platforms are well within their rights to continue to block him.  Some would say they have an obligation to do so.