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Conservatives, Democrats and the convenience of denouncing free speech

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Cross-posted from The Guardian

Westerners love to decry censorship aimed at them by Muslims while ignoring the extreme censorship they impose on them 

[Updated below]

Nothing tests one's intellectual honesty and ability to apply principles consistently more than free speech controversies. It is exceedingly easy to invoke free speech values in defense of political views you like. It is exceedingly difficult to invoke them in defense of views you loathe. But the true test for determining the authenticity of one's belief in free speech is whether one does the latter, not the former.

The anti-US protests sweeping the Muslim world have presented a perfect challenge to test the free speech convictions of both the American right and the Democratic party version of the left. Neither is faring particularly well.

Let's begin with the Democrats. On Thursday, the Obama White House called executives at Google, the parent company of YouTube, and "requested" that the company review whether the disgusting anti-Muslim film that has sparked such unrest should be removed on the ground that it violates YouTube's terms of service.

In response, free speech groups such as the ACLU and EFF expressed serious concerns about the White House's actions. While acknowledging that there was nothing legally compulsory about the White House's request (indeed, Google announced the next day they would leave the video up), the civil liberties groups nonetheless noted -- correctly -- that "it does make us nervous when the government throws its weight behind any requests for censorship," and that "by calling YouTube from the White House, they were sending a message no matter how much they say we don't want them to take it down; when the White House calls and asks you to review it, it sends a message and has a certain chilling effect."

Right-wing commenters loudly decried the White House's actions on free speech grounds. Some of their rhetoric was overblown (the sentiment behind the request was understandable, and they did nothing to compel its removal). But, for reasons made clear by the ACLU and EFF, these conservative objections were largely correct.

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In sum, the White House has no business sticking its nose into which videos YouTube decides to publish or suppress. Corporations that depend on the US government for all sorts of vital benefits and contracts, and which are subject to its regulations and punishments, will always perceive White House "requests" as being far less optional than similar requests from random users. Nobody should want the US government insinuating itself into the determination by private internet companies about which political speech they will allow.

The White House's request to YouTube provoked almost no objections from Democrats, who -- when there is a Republican president -- tightly bind themselves to the ACLU and parade around as free speech crusaders. To the extent they acknowledged any of this at all, their responses ranged from indulging patently absurd pretenses (this was just a polite request from the White House: what's wrong with that?) to affirmative justification (the film is intended to cause violence and thus should be removed).

Just imagine if the Bush White House had called YouTube and "requested" that it remove anti-war videos on the ground that such videos were endangering US troops. That is hardly some fantastical hypothetical. The claim that administration critics were "emboldening the enemy" was a very common trope during the Bush era (an ugly trope that some progressives now repeat toward conservative critics of Obama). John Ashcroft infamously announced when testifying before the Senate in December 2001 that civil libertarian objections to administration policies "only aid terrorists" and "give ammunition to America's enemies."

Does anyone doubt that if the Bush White House had "requested" in the wake of 9/11 that all anti-war or anti-administration videos be "reviewed" to see if they should remain on the internet -- on the not-implausible ground that they might encourage attacks on American troops or personnel -- that Democrats would have little trouble seeing why it is dangerous to have the executive branch taking action to influence private internet companies to suppress political speech? The actions of the Obama White House are no less inappropriate.

Recall the so-called "request" in December 2010 from Joe Lieberman, made in his capacity as chairman of the Senate Homeland Security Committee, that private corporations such as Amazon, Visa, MasterCard and others cut off all services to WikiLeaks, including hosting its website and allowing payments to the group. Those corporations instantly complied -- how many American companies will continue with behavior which a leading senator announces is harming US national security? -- and few Democrats had trouble understanding why such a "request" was so odious. It should be equally easy to see why this is the case with the Obama White House's request to Google.

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Then there's the merits of the censorship case regarding this video. The claim that political speech should be suppressed because it is intended to "inspire" or "provoke" others to commit violence has been the favorite tactic of censors and free speech enemies for decades. Indeed, every single tyrant who wants to suppress political speech does so by claiming that the ideas being expressed are more than mere "political opinion": it is "incitement" to violence, they invariably claim.

In the 1950s and 1960s, southern states repeatedly attempted to impose criminal and civil liability on the NAACP by claiming, not inaccurately, that the fiery speeches of the group's leaders in defense of boycotts and protests were inspiring some of the group's members to break the law and engage in violence. But the US supreme court, in the 1972 case NAACP v Claiborneunanimously rejected that pernicious theory, holding that there would be no meaningful free speech if speech could be proscribed on the ground that it "inspires" others to commit violence: "While the State legitimately may impose damages for the consequences of violent conduct, it may not award compensation for the consequences of nonviolent, protected activity" [my emphasis].

The court in Claiborne also noted that even "advocacy of the use of force or violence does not remove speech from the protection of the first amendment." The court there was citing its earlier decision in Brandenberg v Ohio, which had overturned the criminal conviction of a Ku Klux Klan leader who had threatened violence against political officials in a speech. The Brandenberg court explained that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force." Obviously, if the state cannot suppress speech even where it explicitly advocates violence, then it cannot suppress a video on the ground that it implicitly  incites violence.

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For the past 10 years, I was a litigator in NYC specializing in First Amendment challenges, civil rights cases, and corporate and securities fraud matters. I am the author of the New York Times Best-Selling book, How Would A Patriot (more...)

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It is far too easy to condemn unpopular viewpoints... by Paul Repstock on Sunday, Sep 16, 2012 at 9:20:24 PM
Totally different.   Can a clear lie that a... by BFalcon on Monday, Sep 17, 2012 at 7:14:40 AM
The correct response to bad or erroneous speech is... by June Genis on Monday, Sep 17, 2012 at 2:46:19 PM
 So, I will have to split my answer.First, no... by BFalcon on Tuesday, Sep 18, 2012 at 3:15:02 AM
 I believe, was never meant to be the same as... by BFalcon on Tuesday, Sep 18, 2012 at 3:26:48 AM
 And on the Right's behalf.Also, routinely th... by BFalcon on Tuesday, Sep 18, 2012 at 3:34:23 AM
 On a final note, let me just say that today ... by BFalcon on Tuesday, Sep 18, 2012 at 3:41:12 AM