Hate speech and free speech are widely misunderstood concepts in the United States. Some people claim that the First Amendment has a “hate speech” exception (it doesn’t), while others seem to think that free speech protections constrain private companies (they don’t). As Apple, Facebook, and YouTube have all recently banned Alex Jones and content produced by his website, InfoWars, for violating their rules on “hate speech,” now seems a good time to set the record straight.
Legally, there is not a “hate speech” exception to the First Amendment’s protection of speech. As the Supreme Court affirmed in 2017 in Matal v. Tam, the government has no business determining what society can and cannot hear because it is hateful. As Justice Anthony Kennedy explained, “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the sustainable safeguards of free and open discussion in a democratic society.”
Kennedy makes an important point. Hate speech laws would mean that the government would have the power to decide what would count as hate speech and what would not.
Is that really a power that we would feel comfortable passing along to the government?
Private companies, unlike government, are not beholden to court’s decisions on free speech. Facebook, Apple, and YouTube can all decide for themselves how to define hate speech and enforce that definition.
That makes sense. As private companies catering to users they have an obligation to shareholders to make a profit so they will pick a definition of hate speech that their users want and then enforce that.
For those who don’t like the chosen definition, there is also a simple solution: Don’t use those sites. This is how the market works. If you don’t like the terms of service then then there are other options (or soon will be). Companies want your business.
Unlike subscribing to the laws of the United States, the user agreements of social media companies are optional.
