As Justice Oliver Wendell Holmes wrote in 1919 in the case of Schenck v. U.S., “the most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theatre and causing a panic.” He convinced the eight other judges, who agreed that in the case of harm being done to innocent parties, some forms of free speech should be squelched.
In the matter of Schenck, the problem was leaflets, which were easily confiscated. But what can be done in this Twitter world, where a misleading account of what might not have happened can be flashed round the world in a matter of seconds? Fake accounts that are startlingly convincing can be disseminated to people who may not be stable, who then say and do things to innocent people that could affect the rest of their lives.
This is what happened the weekend before last. The first take on the big weekend story turned out to be false — that 11 white teenagers in the red MAGA hats from the Catholic high school in eastern Kentucky, in Washington to attend the March for Life on Friday, had confronted and mocked an innocent group of black men and then disrespected and elderly drum-beating Native American Vietnam war veteran.
Turns out it was quite the opposite: The black men in question were the Black Hebrew Israelites, a violent hate group, and the Indian veteran never saw Vietnam. And both of them provoked the Catholic students, not the other way around, while the students did their level best to keep the peace.
Unfortunately, by the time the truth had emerged about four hours later, an international hate storm had blown up around the young students that swallowed them, their school, and their parents alive. Death threats abounded — their school had to close for security reasons the following Monday — and the reputations of the students and school seemed irreparably damaged. And even though many of the tweeters apologized and deleted their postings, a sizable group on the left proclaimed that although the students themselves might not have been technically guilty, they were still white, male, and Catholic, which made them guilty enough to deserve whatever they got.
A case like this screams out to be included in the Holmes definition of all-too-free speech that was better not uttered. But in this case it’s not easy to know what to do. The whole “charm” of Twitter such as it is is that it features instantaneous feelings and thoughts in the moment, so an indefinite time delay for either fact-checking or more information would defeat the whole point of the thing.
Should a one-hour delay be imposed on all postings? Two hours? Four? Should fines be imposed for non-checking of sources? Should they be higher for malice, or for a mistake? If this all sounds like too much for Twitter to handle, it probably means that it is, so the solution may be to go to the other end of the handle and focus on trying to dis-incentivize tweeters from tweeting out postings that they aren’t wholly certain are true.
The parents of 16-year-old Nicholas Sandmann, the poster boy for the group, took the first step when they hired a piranha-like lawyer, whose first move was to tell the celebrity tweeters who hadn’t recanted to do so before Friday or face a series of punitive lawsuits that will leave them all stripped to the bone. The fact or the threat of broken careers and/or emptied-out bank accounts should lead some of them to think twice before posting items that make them feel tingly but that they aren’t wholly certain are true.
