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What constitutes 鈥渃ensorship鈥� is an intensely political question. If by censorship one means the ability of some entity to prevent people or organizations from speaking, writing, printing, posting online, or otherwise disseminating their views, then in the context of the United States, the First Amendment free speech protections apply only to government censorship. There is no constitutional protection against private entities such as businesses from censoring speech within their own domains. What Twitter or other social media companies do when they engaging in content 鈥渕oderation鈥� is not censorship in any legal sense.

Nevertheless, one could make the case that what social media platforms have created in the last 15 or so years is a new form of the public square, and so even if forums like Twitter are privately owned, they have become so integral to public discourse that they have acquired certain First Amendment responsibilities. Changing technology and social practices are relevant to what constitutes the arenas in which citizens of a democracy can and should be able to address one another and express their views. 听

Especially significant to the functioning of a private 鈥渃ontent provider鈥� such as Twitter is the 1996 revision of the 1934 Communications Act. Section 230 of Title 47 of the U.S. Code governs the liabilities of Internet platforms. In particular, Section 230(c)(2) says this: 鈥淣o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.鈥� The key here is that an 鈥渋nteractive computer service,鈥� such as Twitter, would not be treated as a 鈥減ublisher.鈥� For example, if a newspaper prints a letter to the editor that defames someone, especially a private citizen rather than a public figure, that paper, as the publisher, may be liable in a defamation lawsuit, but 230(c)(2) protects Internet platforms if they allow someone to post rather than to print the very same content.

The intent of Section 230 was to limit regulation of the Internet in order to promote it as a new technology. It worked. The 1990s witnessed a revolution in information technology, powered by a myriad of experiments by companies, some of which produced some of the most profitable and influential businesses in the world today.

But the Internet has now become a familiar element of daily life for billions of people, and those companies are well-established. Not only do they not need protection to develop, society needs protection from them. In fact, the algorithms that such sites employ to direct users to content deliberately exploits and promotes tendencies to extremes in order to hold the users鈥� attention, exposing them to more and prompting them to provide more data that these companies can then sell.

We can and should revisit Section 230(c)(2). Even that law made companies responsible for restricting sex trafficking, prostitution, and the sexual exploitation of children, so there is no reason not to consider extending their liabilities as publishers of content. If Internet platforms were subject to the same liability laws as newspapers, for example, then we would not need to ask if Elon Musk should consider restoring moderation tools; his lawyers would tell him that he must do so. This alone would present a significant obstacle to extremists and other hostile actors who now exploit the weaknesses of the Internet with near impunity.听

The so-called 鈥済reat replacement theory鈥濃�攚hich claims that a global elite, often cited as Jews, is conspiring to replace white Europeans with non-Europeans鈥攈as been referred to as the philosophical underpinning for domestic extremism in some countries including the United States. What鈥檚 the truth behind this claim, and how can the 鈥渢heory鈥� be debunked?

There is no truth behind the claims of the 鈥済reat replacement theory鈥� itself, of course, but it is not clear to me that this theory is the philosophical underpinning for domestic terrorism. The deeper problem is the rise of ethnonationalism across the globe. These forms of ethnonationalism and outright neo-fascism have seized upon the great replacement theory as a vehicle to project their message onto segments of the population that feel threatened by demographical, cultural, and political change and that have suffered economic and social disruption and alienation due to the rapidly changing world brought on by globalization and automation.

Because this 鈥渢heory鈥� is both a propaganda tool and a symptom of societal anxieties and resultant pathologies, it will be difficult to disprove directly to those susceptible to it while the underlying realities of disruption, fear, and economic distress persist. The great danger is that conventional nationalism gets nudged in the direction of neo-fascism when media figures like Tucker Carlson and even Republican politicians treat the great replacement theory as a fact about the ambitions of 鈥渢he radical left.鈥� The sad fact is that the Republican party is now so in the thrall of its radicalized base that it has largely remained silent on this question. The problem, therefore, is not the great replacement theory itself but rather a political culture in the U.S. in which it is acceptable to flirt with or even embrace ethnonationalism in order to manipulate a segment of the electorate without addressing the actual causes of their distress.

President Biden was among those who denounced antisemitism in the wake of Ye鈥檚 praise for Hitler and Nazis. Is challenging antisemitism a sufficient response? 听

Denouncing antisemitism unambiguously is easy enough. More effective would be what I suggested above: extending the liability of Internet platforms by treating them as publishers, not just neutral conveyors of content. Slander, libel, harassment, and incitement to violence would then become a legal liability for these platforms as well as for those engaging directly in such speech on those platforms. Consider the fate of Alex Jones, whose defamation of the families of the Sandy Hook murder victims earned him a $1.4 billion penalty. Admittedly, such forms of liability cannot target antisemitism as such, but they might deprive the sites and the 鈥渢hought leaders鈥� promulgating it of the oxygen they need to operate.

According to the Anti-Defamation League, there were more than 2,700 antisemitic incidents in the U.S. in 2021, an all-time high. Second Gentleman Doug Emhoff, the first Jewish spouse of a U.S. vice president, recently hosted a roundtable with Jewish leaders and White House officials to discuss the rise in antisemitism and efforts to combat hate.听 Is that an effective approach? 听

It is certainly a start. More effective would be measures such as revising 230(c)(2) to make Internet platforms liable in civil lawsuits for offenses such as slander and in criminal cases for offenses such as incitement and harassment. Again, this would not be a direct combatting of antisemitism, but it would put a price tag on the reckless promotion of hate and falsehood.

Something else I would want to see is a much more concerted ecumenical effort among religious communities to combat antisemitism, and the White House, including a figure such as the Second Gentleman, could play an important role in coordinating and mobilizing such efforts. For example, in Vatican II, the Catholic Church renounced as heresy the libel of 鈥渂lood guilt鈥� against the Jews for the death of Jesus. Would conservative Evangelical denominations be ready to do the same? And to make it a priority in their preaching at this moment in history?听

Critics of hate crime laws argue that those offenses are no more morally reprehensible than similar crimes motivated by power, greed, spite, lust, or sadism, and the harm to victims is no worse than that caused by comparable misdeeds.听 They also say that punishing hate crimes will not reduce group conflict. Are the critics correct? 听

I suspect that they are correct. I would prefer to see aggressive investigation and prosecution of the relevant crimes, perhaps deploying a notion of degree of malice in the perpetration of a crime, rather than some objectionable ideological commitment, in sentencing. More aggressive investigation is something we need, because domestic terrorism on the far right has become a serious national security threat. It is important to investigate as potential domestic terrorist organizations 鈥渕ilitias鈥� such as the Proud Boys and Oath Keepers, whose actions on January 6 more than justify enhanced scrutiny. Unfortunately, the Republican Party has objected to any such policy, in part because it seems a threat to the obsessive gun culture in this country and in part because the GOP fears offending its base.

The assailant at the Colorado Springs nightclub shooting faces the possibility of life in prison without parole. But given the recurrence of bias-motivated shootings, how effective a deterrent is incarceration for hate-driven crime?

It probably is not much of a deterrent. Deterrence surely plays a role in preventing some crimes, but these kinds of bias-related killings are so pathological that I suspect that if someone is seriously considering committing them, they have long ago passed beyond a calculus that factors in severe penalties.听 Other policies, such as I have suggested above, are more effective in reducing crimes like these.

Also, the overwhelming number of guns in circulation in the U.S. is key to the rise and the carnage of these atrocities. The Second Amendment presents a powerful obstacle in reducing the availability and killing power of the weapons on the market today; however, I believe that liability laws for gun ownership, just as we have liability laws for automobiles, would be an effective way to reduce the number and lethality of guns in circulation by requiring that each gun be insured, from factory floor to private owner, according to the risk it presents. Changing the gun culture of America is an important step in reducing the lethality of bias-motivated crimes, and introducing the responsibility of liability might be a very effective way to do that.

University Communications | February 2023

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