Greenwald’s Free Speech Absolutism and Twitter’s Foley Ban

Sometimes I’m glad that Glenn Greenwald won’t heed my calls to just shut up and count the money, because, as the living embodiment of everything philistine and dishonest about the celebrity left, he is endlessly educational. Today’s lesson: the bogusness and stupidity of mainstream free speech mythology.

Greenwald recently took to his blog to lament Twitter’s ban on posting the video of ISIS’s alleged beheading of journalist James Foley. As with so much the fearlessly adversarial™ GG does, there is a lot of  wailing and keening, but very little in the way of precise advocacy.

Advocacy-free handwringing is Greenwald’s bread and butter, but even if it weren’t he’d still be ill-suited to condemning Twitter in concrete terms. He is a proponent of what is charitably called free speech absolutism, which is the doctrine that neither Congress, nor any other policy-making body, shall abridge the right of (mostly rich) white guys to say, print, build and sell whatever they like. This has led him to five years defending a murder-inciting white supremacist during his lawyer days; support for the Citizens United Supreme Court decision enshrining the constitutional rights of corporations; support for a Supreme Court reversal of a ban on animal torture porn; and opposition to a community’s attempt to ban Chick-fil-a from its neighborhood on the grounds that the owner funds anti-LGBTQ political groups.

From the standpoint of free speech absolutism, Twitter’s ban on the Foley video occupies a a rare gray zone for a privileged, binary thinker like Greenwald, between the speech rights of Twitter users, and the speech rights of Twitter the corporation. For the advocate of corporate speech rights, all Twitter speech is indisputably Twitter’s speech, so Twitter is at liberty, both legally and on principle, to ban anything it pleases, in the same way The Intercept is free to allot commenting rights only to ardent fans and cherry-picked trolls. Greenwald concedes as much, suggesting that overt control of user contributions on social networks is a purely ‘prudential matter’, though a vexing one.

Putting aside the somewhat laughable extent to which he presents the aggressive shaping of our discourse by “executives driven by profit motive, drawn from narrow socioeconomic and national backgrounds” as something hideously new, and seemingly remote from his own current place in the food chain, Greenwald is perfectly correct in general terms to wring his hands over Twitter’s ban. But naturally he gets it all backwards. This passage neatly encapsulates his misplaced, but typical, emphasis:

Twitter refused to follow their edict through to its logical conclusion when they announced they would not ban the account of the New York Post even though that tabloid featured a graphic photo of the Foley beheading on its front page, which it promoted from Twitter. The only rationale for refusing to do so is that banning the account of a newspaper because Twitter executives dislike its front page powerfully underscores how dangerous their newly announced policy is.

Surely Twitter’s ostensible great gift to society is the power it gives nobodies to participate more directly in public discourse. Therefore, to any real advocate of free, democratic speech, the banning of small, powerless people from Twitter places all the danger front and center, with no underscoring required. But trust Greenwald to hit this ludicrous, bathetic note on behalf of Murdoch’s reactionary tabloid. He has, after all, spent the past fourteen months touting the benefits of mediation to whistleblowing and the primacy of billionaires to the truth-telling enterprise. While implicitly warning us against the slippery slope from banning nobodies to — horrors — banning the New York Post, it never occurs to him that Twitter’s two-tiered Foley policy only underscores how power and free speech have always worked.

Of course, misreading power is a vital function of the free speech purist, and a crucial part of that is misreading first amendment history. So in the hackneyed civics lesson elsewhere in the piece, Greenwald trots out the usual hate-mongers who, as we’ve been told again and again, are the unwitting vanguard of free speech:

…free speech defenders such as the ACLU so often represent and defend racists and others with heinous views in free speech cases: because that’s where free speech erosions become legitimized in the first instance when endorsed or acquiesced to.

The defense of hate speech is a cause much-beloved to liberals, appealing as it does to their vanity — look at how even-handed and consistent I am! — their love of simplistic false equations, and above all, their starry-eyed conviction that sound arguments and law are the building blocks of a just society.  For the free speech purist, the state is the embodiment of fair play. If it permits Nazis to march in Skokie then surely it must, and will, permit communists to do likewise. If it permits homophobes to harass grief-stricken funeral attendees, it must likewise permit Occupy activists to picket the homes of billionaires.

Even a casual acquaintance with the facts shows this is utter nonsense. In fact, free speech is always provisional and generally commensurate with the utility/harmlessness of the speech to power. There is quite a lot a sexist, heteronormative, white supremacist, imperialist ruling class finds useful in hate speech, which is, after all, the language of dominance. It is reactionary, not dissident. Radical speech is far more provocative. Therefore, historically, it is radicals and not hate groups that have overwhelmingly been the main targets of political speech repression. Hate speech, far from being the canary in the coal mine, is more like the foreman, keeping the workers in line, in part by keeping them at each others’ throats.

If hate speech has a relationship to First Amendment common law, it is that concessions the state makes to it sometimes ripple backwards to prior decisions against radicals, long after they can produce any material benefit. Example: Between 1949 and 1958, the government persecuted members of the Communist Party under the Smith Act, which made it illegal to advocate the overthrow of the government. By way of this, and multiple anti-Communist witch hunts happening in parallel, the Communist Party was effectively destroyed, and a thick residue of anti-radicalism persists to this day. There is absolutely nothing in the history of U. S. white supremacism that remotely compares with this, which is only one of many crackdowns on dissident speech by which left-wing radicalism was disciplined and largely eradicated.  The House Un-American Activities Committee put this disparity explicitly when it abandoned it’s investigation of the Klan before it began to focus on Communists.  “After all, the KKK is an old American institution.” committee member John E. Rankin said at the time. (source)

The Brandenburg vs Ohio case in 1969, concerning incendiary speeches made by members of the Ku Klux Klan, also makes the disparity exceptionally clear. In striking down an Ohio criminal syndicalism statute under which members of the Klan had been convicted, the Supreme Court ruled that the government cannot punish inflammatory speech unless that speech is likely to incite imminent lawless action. That decision led to the reversal of prior decisions against radicals, the most recent of which was Dennis vs. The United States, a CPUSA Smith Act Case which was by that time eighteen years old. In summary, on a rare occasion when white supremacists ran afoul of the law on speech grounds in a way that radicals had for decades, they were let off the hook by the Supreme Court. Greenwald’s and the ACLU’s potted history has it all entirely backwards.

The perennial touting of hate mongers as the free speech vanguard can be seen as just one more privilege they enjoy, and the erasure of radicals from the story as yet more repression. Of course, no one of any consequence is going to discuss the actual history, least of all Greenwald, whose career is built on selling bitter-coated sugar pills to self-consciously disaffected rubes, and whose immunity from state interference requires a more pleasing explanation than that he’s perfectly harmless, even helpful, to power. His interrogative title, “Should Twitter, Facebook and Google Executives be the Arbiters of What We See and Read?”, sets the tone for the piece, which asks fashionable questions without providing unfashionable answers.  One comes away with very little other than the sense that Greenwald thinks free speech is very, very important. For the handwringing cult he represents, that’s more than enough.

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