Congresswoman Bonnie Watson Coleman wrote a letter to Twitter CEO Jack Dorsey last October–which she made available on her website–threatening the social media platform with “increased regulations” if it did not do more to stop people from using it for “propagating hate.”
Although regulating speech on social media that “propagates hate” in general would violate the First Amendment, regulating speech in particular “that could possibly incite riots”–as Coleman put it in a phone interview with The VOICE–is a move that the Supreme Court could ultimately uphold as constitutional, under the “fighting words” doctrine.
“Fighting words” -which the Supreme Court deemed unprotected by the First Amendment in Chaplinsky v. New Hampshire (1942) – have been defined as “those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.”
Over the decades the reach of the fighting words doctrine has been more strictly defined but never overturned.
So in order for Congresswoman Coleman’s plan to work, she and other members of Congress would need to write explicit legislation that meets the criteria mentioned above.
In her letter to Twitter she writes of her concern that some of the platform’s users have come to “feel comfortable sharing racist ideologies, ultimately contributing to the type of violence that we witnessed in August 2017 at the ‘Unite the Right’ rally in Charlottesville, V.A.”
As was widely reported, White Nationalists who were rallying became physically violent against counter protesters and the event ended with a 32 year old woman killed, and 19 others injured.
The incendiary language of the White Nationalists at the Charlottesville rally was a continuation of the toxic and hateful comments tweeted by bigots around the world using racial slurs and calling for violence.
A German artist and activist named Shahak Shapira has actually painted the words from some of the worst tweets he’s come across, onto the sidewalks next to Twitter’s office in Hamburg, Germany, using art to voice his opposition to the same permissive behavior on the part of the company that has upset Congresswoman Coleman.
Tweets he painted include ones like: “LETS GAS SOME JEWS TOGETHER, ” and “kill all the gays and faggots.”
Though Twitter did not remove the incendiary tweets that have caused activists and lawmakers to call for change, leaders at the social media titan have indicated they are not entirely opposed to voluntarily prohibiting hate speech.
Erin Griffith, in an article for Wired, reported this October that Twitter’s Trust and Safety Council is enacting “new rules around unwanted sexual advances, nonconsensual nudity, hate symbols, violent groups, and tweets that glorify violence.”
Will these changes address Congresswoman Coleman’s call to action? She told the VOICE she had no specific regulations in mind, only that this “is something that would definitely have to be explored. We’re not looking to jump into something and present something that isn’t thought-provoking, and doesn’t have input from stakeholders, the industry, as well as you all, who use social media.”
Until stakeholders have a chance to be convened and to hash out specific goals and requirements, the general call for censoring certain users’ speech clashes with the First Amendment.
As UCLA Professor of Free Speech Law Eugene Volokh wrote in a Washington Post column, responding to Congresswoman Coleman’s letter to Twitter, “The First Amendment bars government officials from passing laws to censor allegedly, as [Congresswoman] Coleman and [Congressman Emanuel] Cleaver put it, ‘racially divisive communications.’”
Professor Volokh adds, “the First Amendment bars government officials from using the threat of retaliation to pressure media platforms to suppress speech.”
When asked about Professor Volokh’s criticism Congresswoman Coleman said, “It’s disappointing to me that he would approach it from that negative perspective because we’re not trying to interfere with free speech, but free speech has its limitations as well. And government has a responsibility to pass regulations, pass laws that will make sure that the citizens of this country are safe and secure.”
When asked about the problem Congresswoman Coleman raises, Mike Hiestand, Legal Consultant for the Student Press Law Center, told the VOICE in a phone interview, “we are in new territory.”
When asked if he could elaborate Hiestand said, “Do we treat emails, do we treat tweets and Facebook posts, and things like that, do we treat them the same as we’ve treated speech traditionally? Or is there something different about those things because of their immediacy, because of their ability to reach big numbers of people, which before that wasn’t always the problem?”
Frank D. LoMonte, Professor and Director of The Brechner Center for Freedom of Information at University of Florida College of Journalism and Communications told the VOICE in an email: “If you just post the words ‘kill Jews’ to Twitter, that’s a horrible thing to say, but I doubt that it crosses the line into an act of unlawful incitement, because nobody realistically expects Twitter readers to say, ‘I wasn’t planning to do any violence to anyone, but now that I’ve read these two words, I guess I will.’”
To that extent Hiestand agrees, telling The VOICE, “If it’s just ‘kill the Jews’ sort of language we haven’t allowed that sort of message to be punished up to this point, at least.”
For now, as Hiestand put it, “If there were very specific tweets calling for very specific action and which would reasonably lead to that action occurring, yeah, it’s certainly possible that social media tweets or posts, things like that could fall into that [fighting words] category and could be subject to some sort of control.”
Congresswoman Coleman, when asked about the exact limits the First Amendment allows government to impose responded by saying, “that is something really out of my wheelhouse and I wouldn’t want to venture into it and offer you an uneducated response.”
The legal precedents established by the Supreme Court and various state courts of appeals provide the best guidelines for governing cyber speech, particularly on social media.