ABC on Wednesday night pulled the “Jimmy Kimmel Live!” late-night show off the air “indefinitely” after controversial comments by its host about the killing of conservative activist Charlie Kirk.

Was this censorship? Judging by the predictable howls of outrage among the corporate media and Democrat elites, cancelling Jimmy Kimmel was an outrageous assault on freedom of speech.

Yet a fuller contemplation of Kimmel’s remarks puts the lie to such claims. While there are aspects of his show’s cancellation which are cause for concern, there are also arguments to be made in favor of imposing sanctions on Kimmel for his remarks.

Contrary to the fulminations of the latest crop of eleventh-hour “free speech advocates”, at no point has America’s First Amendment protections of the freedom of speech ever been interpreted to mean freedom from consequence. The marketplace and private enterprise absolutely can and do impose consequences on people for what they say. The law supports them in this, and the law also supports criminal sanctions if what people say incites others to lawlessness and violence.

Moreover, those same “free speech advocates” have opposed Free Speech for others in the past. Their defense of Free Speech is “speech for me but not for thee.”

Can Free Speech endure in the face of such hypocrisy? Can any defense of Free Speech as a moral imperative prevail once people are unwilling to govern their own speech with principles of honesty, civility, and courtesy towards others?

If we do not have Free Speech for all, we will have Free Speech for none.

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Free Speech Is A Moral Imperative

To restate what should always be obvious, yes, Free Speech is a moral imperative, and yes, we should defend the Free Speech rights of even those who say disgusting and offensive things. I have written in defense of Louis Farrakhan for that very reason, and I oppose President Trump’s ban on flag burning for that very reason.

As I defended Louis Farrakhan’s right to say offensive and disgusting things, I will unhesitatingly defend Jimmy Kimmel’s right to say offensive and disgusting things. I will defend anyone’s right to say offensive and disgusting things.

By any measure, Jimmy Kimmel’s comments were offensive and disgusting.

The MAGA Gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it

While there were the predictable expressions of outrage from social and political conservatives over Kimmel’s statement, non-conservative voices as well were disapproving. Sports commentator and media personality Stephen A. Smith lambasted Kimmel’s comment, pointing out that it wasn’t even funny.

Appearing on CNN, Geraldo Rivera condemned the comment completely, highlighting a particularly problematic context:

He’s basically saying that members of MAGA are — because Tyler Robinson is a member of MAGA, and because of that, somehow they had it coming, that Charlie Kirk had it coming. That, you know, once you go there, once you, you know, embrace that philosophy, that ideology, you’re fair game. You know, know, it’s just a I think that too often we — my whole life 55 years in the news business, the First Amendment has been my shield, my protection, I embrace it, I celebrate it, it’s extremely important, and it is important, and it is at times embattled, and I get I get that — But what we don’t get, you know, the more sophisticated it seems we are, what we don’t get is how grievously hurt regular people are. And how difficult sometimes in positions of power in communications or government, how easy it is to overlook the sincerity of that feeling and to dismiss it.

Yet while Jimmy Kimmel has the same right as anyone else to express his opinion and to speak his mind, that right does not shield him from condemnation for saying something that is outrageous, offensive, and, yes, disgusting.

A defense of Free Speech as a moral imperative does not preclude anyone calling out Jimmy Kimmel for his remarks. Even if one argues that legal sanctions against Kimmel are impermissible because of the First Amendment, moral sanctions against Kimmel are surely imperative.

People should be offended, and they should feel justified in turning away and tuning out Jimmy Kimmel at the very least.

If enough people tune out a late night talk show host, that host’s show is going to get cancelled. According to several accounts, that is exactly what happened, as ABC affliates wanted to put as much distance between themselves and Kimmel’s noxious remarks as possible.

"Mr. Kimmel’s comments about the death of Mr. Kirk are offensive and insensitive at a critical time in our national political discourse, and we do not believe they reflect the spectrum of opinions, views, or values of the local communities in which we are located," said Andrew Alford, president of Nexstar's broadcasting division. "Continuing to give Mr. Kimmel a broadcast platform in the communities we serve is simply not in the public interest at the current time, and we have made the difficult decision to preempt his show."

If Jimmy Kimmel has a right to speak his mind, ABC affiliates have a right not to amplify his toxic messages.

In this context, the defense of Free Speech should support the cancellation of Kimmel’s show.

Yet there is an important caveat in this: It is one thing if ABC affliates are responding to market pressures. It is quite another if they are responding to political pressures.

Were there political pressures? We cannot rule them out, because just before ABC pulled the plug on Kimmel’s show, FCC chairman Brendan Carr, appearing on conservative commentator Benny Johnson’s podcast, said openly Kimmel’s remarks invited legal sanctions against ABC and ABC parent company Disney.

Federal Communications Commission Chairman Brendan Carr blasted Kimmel on Wednesday, telling podcaster Benny Johnson that Kimmel's comments were "truly sick," and that there's a "strong case" for legal action against both ABC and Disney (ABC is a Disney subsidiary). "This is a very, very serious issue right now for Disney," said Carr. "These companies can find ways to take action on Kimmel or there is going to be additional work for the FCC ahead."

While Kimmel’s remarks are uniformly indefensible, even Republican Senator Ted Cruz found Brendan Carr’s rhetoric unpalatable.

Cruz noted that he was no fan of Kimmel’s, and said he is “thrilled that he was fired” over his comments about Kirk.

“But let me tell you, if the government gets in the business of saying we don’t say what you the media have said, we’re going to ban you from the airwaves if you don’t say what we like, that will end up bad for conservatives,” Cruz said.

Implicit in Cruz’ take is the presumption that Brendan Carr’s assertion of a strong legal basis for action is incorrect. To be sure, if Carr is wrong, if there is no legal basis for action against ABC and Disney, then Carr’s comments can quite easily be seen as political pressure to silence Jimmy Kimmel. Political pressure to silence anyone is an outright assault on Free Speech and should never be permitted, let alone defended.

But what if Carr is not wrong?

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Tyler Robinson Felt Charlie Kirk Deserved Killing

Charlie Kirk’s killing presents a particular challenge when it comes to defending Free Speech: from Tyler Robinson’s own statements there is good evidence that he had absorbed an ideology which saw killing conservatives such as Charlie Kirk as a good thing.

ROOMMATE: "Why?"

ROBINSON: "Why did I do it? I had enough of his hatred. Some hate can't be negotiated out. If I am able to grab my rifle unseen, I will have left no evidence. Going to attempt to retrieve it again. Hopefully they have moved on. I haven't seen anything about them finding it."

Setting aside the question of whether Charlie Kirk was truly emblematic of hatred and bigotry, this exchange would seem to establish within Tyler Robinson’s mind that Charlie Kirk “deserved” killing.

Recall what Geraldo Rivera said about Jimmy Kimmel’s remarks:

…that Charlie Kirk had it coming. That, you know, once you go there, once you, you know, embrace that philosophy, that ideology, you’re fair game.

That is an attitude that is being expressed openly by many on the political left, such as podcaster “Destiny” (real name Steven Bonnell), who explicitly called for more conservatives to be targeted with violence.

You need conservatives to be afraid of getting killed when they go to events so that they look to their leadership to turn down the temperature. The issue is right now, they don't feel like there's any fear.

That is a direct call for political violence against the Charlie Kirks in this world.

The act of making statements intended or likely to incite violence has long been understood by the courts to be subject to legal sanction, and the First Amendment is not a bar to such sanction.

This was most clearly articulated in the Supreme Court case Brandenburg v Ohio1, which affirmed that government had a legitimate interest in forbidding acts of speech which were intended or likely to incite “imminent lawless action”, but that statutes which did not limit their prohibitions to acts of speech which could reasonably be seen as that sort of incitement were un-Constitutional.

We must also consider the social media backdrop for both Steven Bonnell’s remarks and Kimmel’s, a backdrop where multiple statements have been captured of people celebrating Charlie Kirk’s murder.

We know from Tyler Robinson’s texts that he harbored a lot of hatred against Charlie Kirk.

We know from the litany of comments made across social media that a number of people have either called for more violence in the wake of Charlie Kirk’s killing or celebrated that killing as an absolute good.

To what extent did such commentary play a role in Tyler Robinson’s choice to murder Charlie Kirk? At the very least, it played a role of some kind.

Does the continuation of such commentary create a probability that others will target conservative figures and attempt to kill them? Charlie Kirk’s murder makes this more likely than not.

Are Kimmel’s remarks likely to produce further violence? Because of Charlie Kirk’s murder, that claim is less extravagant than it was prior to Charlie Kirk’s murder.

Do they fall within the boundaries for acts of speech which are a call to violence?

Before Charlie Kirk’s assassination, we might have been hard-pressed to construct an argument that Kimmel’s remarks rise to the threshold where criminal sanctions and government pressure become appropriate. After Charlie Kirk’s murder, we are faced with clear evidence that threshold has been lowered dramatically. That Charlie Kirk’s murder was motivated at least in part by years of online commentary calling Charlie Kirk “racist” and “fascist” leaves us with few other conclusions.

If Kimmel’s remarks significantly increase the chances of any other conservative being targeted with violence, they run afoul of the Brandenburg tests.

Moreover, the Brandenburg case is not an outlier for the Supreme Court. The opinion itself drew on earlier cases, such as 1937’s Herndon v Lowry2, which subjected the First Amendment right of peaceable assembly as well as of Free Speech to similar constraints, holding that membership in any political organization could be criminalized only when that organization constituted a threat of lawlessness and violence.

The power of a state to abridge freedom of speech and of assembly is the exception, rather than the rule, and the penalizing even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government.

A similar delineation was made in the 1961 case Noto v United States3, which held that membership in the Communist Party could be criminalized only if it was shown that the Communist Party intended its members take to imminent lawlessness and violence.

…the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching, and to justify the inference that such a call to violence may fairly be imputed to the Party as a whole, and not merely to some narrow segment of it.

The case law established by the Supreme Court is clear on one point: any act of speech intended or likely to produce lawless action or violence is subject to legal sanction.

Do modern progressives and Democrats intend their supporters to take to imminent lawlessness and violence? While many would say otherwise, a resolution by the US House of Representatives honoring Charlie Kirk and rejecting political violence garnered the support of only 95 Democrats.

Add to that the explicitly violent agenda of groups like Armed Queers SLC, which is currently under investigation for possible connections to Charlie Kirk’s shooting. A similar group, the Socialist Rifle Association, has made similar calls for violence against conservatives.

After Charlie Kirk’s assassination, we are presented in this country with the reality that violent and demonizing rhetoric can and does lead to political violence. If a late night talk show host is demonizing one political group and implying that violence against that group is somehow permissible, it no longer can be automatically presumed to be immune from legal sanction vis-a-vis Brandenburg.

Brendan Carr may not only be right about there being a legal basis for action against ABC and Disney for Kimmel’s comments, he may have a legal duty to bring such action. That would make Carr’s comments on Benny Johnson’s podcast decidedly uncomfortable, but also uncomfortably correct. That would leave Ted Cruz—who as Solicitor General for the State of Texas has argued cases before the Supreme Court—rather wide of the mark.

That there could be legitimate basis for government action in response to the continued intemperate rhetoric celebrating Charlie Kirk’s killing and beatifying his killer is disquieting to say the least, but it is a poor defense of Free Speech to argue Free Speech is somehow above the rule of law.

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Progressives Have Censored And Will Censor Again

To this conundrum we must also consider a second: Were progressives still in power, they would already be moving levers of government power against people who espouse the talking points of political conservatives in this country. We know this because it has already happened.

Facebook CEO Mark Zuckerberg has confirmed that the Biden Administration had been pressuring Facebook to censor COVID-19 related content that expressed views contrary to the Administration’s official position.

In 2021, senior officials from the Biden Administration, including the White House, repeatedly pressured our teams for months to censor certain COVID-19 content, including humor and satire, and expressed a lot of frustration with our teams when we didn't agree.

Zuckerberg also confirmed that the FBI had pressured Facebook to censor political content in the runup to the 2020 election, including commentary surrounding Hunter Biden’s infamous laptop, which corporate media outlets and later 51 former US intelligence officials would pan as “Russian disinformation”.

We know from the discovery leading up to the Supreme Court case Murthy v Missouri4 that such pressures were not limited to Facebook, but encompassed several social media platforms.

I know from personal experience that LinkedIn censored COVID-19 content it did not like. I was ultimately banned from that platform for nearly two years. My “crime” was using actual government data to condemn the White House “winter of death” rhetoric pushed by then White House COVID-19 “czar” Jeffrey Zients.

From Murthy v Missouri we know that my cancellation was not merely LinkedIn policy, but also government policy. Nor am I an isolated case. The “Twitter Files” established that beyond all dispute.

Even if one conceded that Jimmy Kimmel’s cancellation is ultimately government censorship due to FCC pressure, the reality remains that such pressures did not originate at the FCC and did not begin with Brendan Carr.

Democrats weaponized government against speech and speakers they did not like long before this. Targeting journalists and their sources was a feature of the Obama Administration even before Donald Trump descended the escalator in 2015.

Free Speech is a moral imperative, but defending that moral imperative demands that all political actors be constrained from targeting and suppressing speech. If only one side of the political spectrum respects the principle of Free Speech, the principle is already defeated.

The same Democrats and progressives condemning Jimmy Kimmel’s cancellation have called for the cancellation of other figures. Even if Jimmy Kimmel’s cancellation amounts to censorship of Free Speech, progressives have sown a wind of censorship and are now reaping a whirlwind of retaliation.

Even if we accept Jimmy Kimmel’s cancellation as an act of censorship, if we condemn that cancellation and do not in the same breath condemn all the many acts of censorship committed by Democrats, we are not defending Free Speech but denying it. If Democrats want to condemn Jimmy Kimmel’s cancellation, they cannot claim any moral credibility until they own their acts of censorship and suppression of speech—and this they have not done.

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Can Free Speech Survive?

Free Speech must be a moral imperative if we are to be a Free People living in a Free Society. On this point there is no second option.

Yet Free Speech can only be a moral imperative if we acknowledge that every act of speaking, every utterance made, will carry with it unavoidable consequences. If we do not speak honestly, and with civility and respect for all, we invite at the very least moral sanction and social opprobrium. If we do not accept the consequences arising from our acts of speech, we will no longer have Free Speech of any kind.

We can only shield Free Speech from oppressive legal sanction if we admit that all must account for what they say as well as what they do. The moment we seek to place any utterance beyond the realm of consequence, in that moment we make the principle of Free Speech into a sword rather than a shield. In that moment we turn claimed defenses of Free Speech into assaults on Free Speech.

The outrage among progressives over Jimmy Kimmel’s cancellation is not merely that Jimmy Kimmel was cancelled, but that the Trump Administration is doing what progressives have done repeatedly over the years. Progressives want to be the censors, not the ones censored.

Free Speech is a moral imperative. There can never be any question about that. There can never be any debate about that.

Yet Free Speech will only endure so long as all people in all parts of the political spectrum are committed to defending Free Speech for everyone, not just political friends and allies. If even one group abandons the ideal that Free Speech is the moral imperative for everyone, Free Speech is eliminated for everyone.

Can we still have Free Speech in this country? At present, I do not know.

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Whomever thought assassinating conservative activist and commentator, and Turning Point USA founder Charlie Kirk was a good idea has undoubtedly sown a wind of political violence. In all probability the whole country shall reap an inevitable whirlwind of political chaos.

Nothing will have been won. No advantage shall have been gained. Progressives are diminished by this senseless killing. Conservatives and the MAGA Coalition are pushed that much closer to accepting all out violence and, ultimately civil war.

Such outcomes make this killing not just a murder most foul, but a murder most stupid as well.

Charlie Kirk built his Turning Point USA organization as well as his own personal reputation by seeking out respectful and civil debate with anyone and everyone. Social media is replete with viral videos of him speaking respectfully and civilly with people who completely disagreed with him. The public communications model he championed was a frank and honest discussion about ideas, where people challenged each others ideas—no insults, no juvenile ad hominem attacks, no grandstanding, just probing questions honestly asked in the hopes of being honestly answered.

I did not know Charlie Kirk, but that was the public image he cultivated through social media. That’s a good image to cultivate. It’s the right image, not just a “right wing” image.

That was the public image which Kirk’s killer attacked at Utah Valley University.

Let that sink in: Charlie Kirk’s killer attacked the very idea that people with differing views not only can engage in civil discourse with one another but have an affirmative moral duty to do so.

Whether one believes Charlie Kirk the man matched his public persona and reputation is immaterial.

What is material is that civil discourse was indisputably essential to Charlie Kirk’s “brand”, and that gunning anyone down is a most uncivil act.

What is material is that killing Charlie Kirk in the middle of one of his speaking events cannot help but promote a message that murder is how one rebuts Charlie Kirk’s ideas.

What is material is that whomever killed Charlie Kirk (the shooter is apparently still at large as of this writing) sought to trump Charlie Kirk’s words with violence.

What is material is that the killer was indisputably wrong. Violence is not speech, and is not an answer to speech.

Violence was not an answer to speech during last year’s appalling and repulsive anti-Semitic demonstrations on the nation’s college campuses.

Violence is not speech. Violence has never been speech. Violence will never be speech.

What are the likely outcomes? Will conservatives and MAGA Coalition members be intimidated by this?

That does not strike me as likely.

Do progressives really believe they would prevail, or that their ideas would prevail, should political violence fully supplant political debate in this country?

Do progressives really believe their priorities are advanced by Kirk’s assassination? Do they genuinely expect conservatives to climb on board with their ideas because of this?

I do not see how that is at all possible.

Will conservatives be seeking retribution and “an eye for an eye”?

I do not know how likely that is, but I suspect that is a more likely outcome than them being silenced and intimidated by this. Certainly for some the thought has become more acceptable after this.

I hope that does not happen. As Martin Luther King, Jr., himself argued in his 1957 book Stride Toward Freedom, “The old law of an eye for an eye leaves everybody blind.”1 No good would come from visiting violence upon progressives because of this.

Yet not everyone will agree with me. Some on the political right may even feel compelled to answer violence with violence, and with every new act of violence the argument for restraint grows weaker.

When enough violent acts by progressives have accumulated, that argument will itself be silenced. Then the violence will be returned, and with interest. In that moment, questions about the moral right and moral wrong of violence will cease to matter to a critical mass on both sides.

After today, we are one more violent act closer to that tipping point.

That tipping point is what makes this heinous act a staggeringly stupid act as well. Once that tipping point is reached, progressives will not be able to stop the violence, nor prevent it from destroying their friends, their families, their lives. Once that tipping point is reached, the violence will continue unabated until both sides exhaust themselves.

There will be no victory. There will be no peace, save the peace of the grave.

Between any two opposing parties—the Arabs in Gaza and Israel, the Protestants and the Catholics in Northern Ireland, and progressives and conservatives here in the United States—the essential ingredient for peace is the same: both sides must come together and agree to live side by side harmoniously. Progressives do not have to agree with conservatives, and conservatives are not obligated to accept progressive ideology, but if progressives and conservatives cannot agree to live side by side harmoniously, the only peace possible is the peace of the grave.

The peace of the grave is no victory, not for anyone.

I do not agree with progressives on anything. I do not agree with their moral ideas, I do not agree with their political ideas, and I certainly do not agree with their notions of dividing people along lines of race, gender, and whatever other arbitrary characteristic suits their whimsy.

Yet I want peace. I am not afraid to coexist side by side with progressives.

Charlie Kirk made it clear he was not afraid to coexist side by side with progressives. His public habits of civil discourse and open debate would have been impossible if he were unable to accept such coexistence.

Progressives have made it clear they are afraid to coexist with Charlie Kirk and all those like him. Progressives have made it clear they are afraid to coexist with conservatives, with MAGA Coalition members, with anyone who does not move in lockstep with their ideas and their beliefs.

That will be the lasting message from Charlie Kirk’s assassination: that progressives are not only driven by hate, but that they are driven also by fear.

For every political ideology, for every system of ideas and beliefs in every sphere of human thought, fear is weakness. Such is the nature of fear, and such is the nature of ideas.

By gunning down Charlie Kirk, progressives have shown the world just how weak they really are. Progressives have shown the world they have lost the debate, and they are giving up on the battle for hearts and minds.

Killing Charlie Kirk was a foul, disgusting, unequivocally evil act. By killing Charlie Kirk, the progressives have guaranteed their own eventual defeat on every battlefield—and that is simply a stupid thing for anyone to do.

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Or is he taking a long-overdue measure to restore civility in our public discourse?

How one answers those questions will of course hinge largely on where one stands on the political spectrum.

The First Amendment is supposed to ensure that the government will not curtail Free Speech in any form.

At the same time, the Supreme Court has for over a century ruled that expression which precipitates criminality is not protected1—thus we have Justice Oliver Wendell Holmes historic conclusion about “falsely shouting fire in crowded theater”:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.

As many in corporate media have rightly observed, however, a more recent Supreme Court ruling2 concedes that burning the US flag is arguably protected speech.

I have said many times that Free Speech is a moral imperative—and it is. There is no doubt about this, nor room for disputation. It necessarily follows that we should be extremely hesitant to impose punishments on any form of speech, no matter how objectionable it may be to some.

There was a reason I wrote in defense of Louis Farrakhan when he was banned from Facebook in 2019.

Farrakhan’s speech is generally vile and beyond offensive. Yet his right to speak is no less than mine or anyone else’s because of it.

How, then, shall we apprehend President Trump’s Executive Order?

In a word, cautiously.

We must first note that President Trump is not, as some in corporate media would argue, thumbing his nose at the Supreme Court. On the contrary, he is very specific and particular with respect to the scope of his Executive Order, speaking specifically and explicitly to the potential for flag-burning to incite riots and violence.

Burning this representation of America may incite violence and riot. American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth

We must also note that every video of a flag-burning protest where someone attempts to salvage the flag only to be met with a violent response is significant evidence in favor of Trump’s view of the matter.

We must also concede what the Supreme Court conceded in 1989, when it ruled that flag burning could be considered protected as Free Speech:

Thus, we have not permitted the government to assume that every expression of a provocative idea will incite a riot, but have instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

That criteria—the so-called “Brandenburg tests” after the 1969 Supreme Court case3—in fact was not set aside in Texas v Johnson.

A moment’s consideration suffices to show that the core logic of both Schenck in 1919 and Brandenburg in 1969 has merit: while we should not punish people for what they say, people should face consequences for what they do. It has never been considered an infringement on Free Speech to demand accountability, else the civil torts of slander and libel would be an impossibility.

Is every instance of burning the US flag likely to incite a riot? That seems improbable.

Have some instances of burning the US flag proved a predicate to violence? As I have already shown, there are innumerable instances of this available on YouTube.

Are some instances of burning the US flag specifically intended to incite a riot? While the answer is ultimately dependent on the extant evidence in every case, we certainly cannot exclude the possibility on any general principle defending Free Speech. If the riot is the objective, then the flag burning cannot be considered protected Free Speech.

Personally, I find burning the US flag highly offensive. People should not do it. People should not burn any nation’s flag, any more than they should burn books, or the Bible, or the Koran.

People should not riot and act violently, either. The US government—including the Trump Administration—should not disregard or violate the First Amendment, no matter what the circumstance. Civic society only functions when it is a civil society, where decorum guides our public discourse.

Unless the surroundings are such that burning an American flag is clearly intended to incite a disturbance of any kind, presuming that flag-burning is not speech is at best problematic. At worst it is outright censorship.

In the face of that uncertainty, I choose to err on the side of caution. Absent clear unequivocal evidence to the contrary, I presume that flag-burning is an instance of speech, and demand that it receive the same deference as more traditional modes of expression.

The politics of President Trump’s Executive Order are not hard to fathom. The Order is of a piece with his federalizing law enforcement in Washington DC, and it dovetails very well with almost perfectly with Trump’s recent rhetoric about deploying National Guard troops in Chicago. His objective is, simply put, “law and order.” President Trump wants to see civility, decency, and rationality restored to the nation’s public discourse.

As a political objective, his desires are laudable. People should want to see civility, decency, and rationality celebrated as the expected norm in our society.

Within the MAGA Coalition that is Trump’s political base, this objective is undeniably a winning political theme and pursuing it a savvy political strategy.

Comprehensible politics does not make a position legal or Constitutional, however. As much as we can say that people should not burn the flag as a statement of moral principle, the extent to which such expressions can be criminalized is suspect.

President Trump’s Executive Order is sure to be challenged. I suspect that, when it is challenged, it will not withstand judicial scrutiny, even at the Supreme Court level.

I do not believe it should withstand scrutiny. For all President Trump’s efforts to thread the Constitutional needle between protected Free Speech and unprotected incitement to riot, the potential for this Executive Order to suppress protected Free Speech is simply too great to ignore.

People who burn the flag and chant such offensive sayings as “Death To America” should be ashamed. They probably would be if they took a moment for self-reflection. Such protests are as stupid and silly as they are offensive, and accomplish little beyond offending people. Hearts and minds are rarely swayed by such mass tantruming.

However, it is the inalienable right of everyone within the United States to be offensive. It is the right of everyone say and do offensive things, so long as they do not incite others to violence. That is the essence of Free Speech, and why it is essential that it be protected above all else.

Has President Trump’s reach exceeded Constitutional limits with this Executive Order banning flag burning?

Yes, it has.

While I support and agree with the moral reasoning Trump lays out in his Executive Order, that reasoning does not override the moral imperative that is Free Speech. People burning the American flag are morally wrong. President Trump banning such acts is Constitutionally wrong. As the Constitution is the Supreme Law of the land, it must prevail. President Trump’s Executive Order therefore must fail.

President Trump needs to rescind this Executive Order immediately. Burning the US flag is offensive, but it is also speech, which is to say that it is Free Speech. We are better off tolerating offensive speech than if we censor and suppress it merely for being offensive.

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On Thursday, Comey shared a picture on Instagram of seashells on a beach arranged into the numbers "8647." The caption read: "Cool shell formation on my beach walk."

We must always remember that Free Speech is a universal Moral Imperative. It extends in all directions towards all people wishing to make all manner of commentary—including rage Notes about others, but also about the commentary which triggers individuals and inspires those rage Notes.

Contents

• Not A Threat

• Not The Meaning Of The Term

• What Is The Context?

• Political Theater

• A Distraction

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Not A Threat

To properly apprehend the various rage Notes—as well as similar postings on other social media, we must understand that every single one of these Notes is pure performative posing hogwash and horse hockey.

Every.

Single.

One.

(Which is why I’ve blanked out the names of the posters and put image captures without linking to the Notes themselves. I decline to contribute to the spread of this nonsense.)

James Comey did not call for President Trump to be assassinated.

No more than Jack Posobiec called for Joe Biden to be assassinated in 2022.

No more than Matt Gaetz was suggesting Senator Mitch McConnell was killed in 2024.

This is not a defense of James Comey. The man is an idiot. The man has always been an idiot. The man always will be an idiot. The case that as FBI Director James Comey was more corrupt, more venal, and more vicious than J. Edgar Hoover is substantial to the point of being overwhelming.

This is a defense of sanity. This is a defense of common sense. This is a defense of a common idiom.

“86” means “to get rid of.” As in to fire—or, in the case of a President, to impeach.

That was how Matt Gaetz demonstrably used the expression last year. It is almost certainly how Jack Posobiec used the expression in 2022.

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(Update) Not The Meaning Of The Term

We do well to consider the established etymology of the term—it does not carry an intimation of violence, nor has it.

In the 1950s the word underwent some functional shift, and began to be used as a verb. The initial meaning as a verb was “to refuse to serve a customer,” and later took on the slightly extended meaning of “to get rid of; to throw out.” The word was especially used in reference to refusing further bar service to inebriates.

Even the Urban Dictionary’s statement on the term’s origins do not support it as a call to violence:

Chumley's, a famous and OLD New York speakeasy, is located at 86 Bedford St. During Prohibition, an enterance through an interior adjoing courtyard was used, as it provided privacy and discretion for customers.

As was (and is) a New York tradition, the cops were on the payroll of the bar and would give a ring to the bar that they were coming for a raid. The bartender would then give the command "86 everybody!", which meant that everyone should hightail it out the 86 Bedford enterance because the cops were coming in through the courtyard door.

This matters because in order for a social media post to be an actionable threat of violence it has to rise to a threshold level of incitement (up to an including an explicit threat of violence). That is the legal standard established in Brandenburg v Ohio1 delimiting defensible “Free Speech” from actionable conduct.

This concept appears again in Brandenburg v Ohio (1969, 395 US 444) , in which the "Brandenburg Test" was established, creating a two part test by which speech advocating criminal acts could be circumscribed:

1. The speech is “directed to inciting or producing imminent lawless action, AND

2. The speech is “likely to incite or produce such action.”

The linkage is clear: people must account for their actions, not their ideas.

If the phrasing cannot be clearly construed as a threat, it is not a threat.

That is the beginning, middle, and end of the discussion, and should have been all along.

We do not criminalize a social media post on the basis of who publishes it. We do not criminalize a social media post because our particular likes and dislikes. We do not criminalize a social media post because of a person’s presumed corruption or failure to be sufficiently “MAGA” for someone’s tastes.

That is not how the rule of law operates. That is not how the First Amendment operates.

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(Update) What Is The Context?

A common refrain in responses to this article thus far has been that “context” matters. That is a fair observation, as context is by definition an essential element of inferring a message’s intent.

However, what can we establish as a relevant context for Comey’s social media posting?

Certainly we may take as a given James Comey’s personal dislike of Donald Trump, given Comey’s conduct in the early days of Trump’s first term of office, and the FBI’s established role in perpetuating the “Russia collusion” hoax.

Likewise, we must acknowledge that President Trump has already been the target of multiple assassination attempts.

However, does personal animus necessarily elevate every anti-Trump message to the level of personal threat? Obviously not. Neither does the sobering reality of prior assassination attempts. Additional factual evidence that Comey’s social media post was intended as a threat is needed, and as of this writing none has been presented.

Moreover, there is reporting from March that “8647” has been a trend on TikTok, as a “silent protest” against President Trump’s administration.

8647 is designed to be a silent form of protest that is designed to signal opposition to President Donald Trump. It's actually a combination of two numbers that have different meanings. 86 is a number commonly used to mean something like "get rid of," and 47 is the number president that Trump is in his second term. He was also the 45th president, so those numbers get a little bit confusing.

8647 therefore means that the people who display it want to get rid of Trump, or make it so that he is no longer the president. The message is vague about how exactly these people want to do that, but it seems that the point is to signal that you don't want Trump to be in the White House. It's not a call for impeachment necessarily, or even an endorsement of some other candidate. It's just a signal of opposition.

There is no reporting indicating that such TikTok posts were considered to be calls for Donald Trump’s assassination.

If “8647” is a sign of political opposition on TikTok, it cannot follow that “8647” is a call for assassination on Instagram. Logic and common sense preclude such partisan views.

Complicating the question of context are observations by some on social media that, at the time Comey made the post, it had been 8647 days since the 9/11 attack on the World Trade Center.

While such observations hardly establish that Comey’s intended comment was about 9/11, they do establish the problematic and uncertain nature of such inferences. If there are plausible alternative interpretations of Comey’s post, on what basis do we conclude the “correct” interpretation included a call for violence?

Moreover, we cannot escape the reality that “8646” was used, as I noted earlier, to protest Joe Biden’s administration.

If “8646” was not a call for Joe Biden’s assassination, we cannot plausibly claim that “8647” is a call for Donald Trump’s assassination.

These are factual elements which must be considered as part of the question of context, and which directly refute the interpretation that 8647 is a call for violence.

The quantify of facts and evidence against the inference that Comey was calling for President Trump’s assassination greatly exceeds the facts and evidence in favor of that inference.

Context does matter, but the facts by which we may establish context for Comey’s social media post are against imputing a desire for President Trump’s assassination. In context, Comey’s post can plausibly be seen as a sign of opposition to President Trump, but no more than that.

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Political Theater

Why are President Trump’s people claiming Comey’s social media posting is something it isn’t? For the very simple reason that it is handy political theater—and as the rage postings across social media prove, effective political theater. Tulsi Gabbard going on Fox News calling for Comey’s arrest is just as performative as the Notes included above.

What Tulsi Gabbard’s comments on Fox News were not was serious commentary or serious discussion about serious issues. Neither was Kristi Noem’s tweet.

We should not be surprised to see the Trump Administration engaging in such shameless political theater.

We should not be surprised to see Donald Trump, Jr., engaging in such shameless political theater.

We should not be surprised to see President Trump engaging in such shameless political theater. All politics is to a degree theatrical, and the political style of Donald Trump especially so. The Trump team is going to make a big deal about this because it advances their political interests to do so.

The Trump Administration claiming that it is a serious threat does not make it a threat nor does it make it serious. In the final analysis, the post is neither serious nor a threat.

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A Distraction

This dustup over Comey’s insipid social media post is a distraction. With Congress making a complete pig’s breakfast of President Trump’s tax reform agenda and with the Supreme Court failing to recognize the judiciary’s limited role in cases involving the Alien Enemies Act, this is not a helpful distraction.

People are better than this.

People deserve better than this.

This is a time when people are well advised to focus on the issues which are going to directly impact their lives

There are plenty of reasons to be angry at President Trump’s political opponents. James Comey’s stupid social media post is not one of them.

Please Support Independent Journalism

At least, that is what we are told by numerous academics, each of whom is outraged that the Trump Administration is choosing not to spend taxpayer dollars with colleges and universities whose behavior they find obnoxious and intolerable. Those same academics go on to tell us that withholding government funds from colleges and universities is “coercive” and they “reject” it.

As leaders of America’s colleges, universities, and scholarly societies, we speak with one voice against the unprecedented government overreach and political interference now endangering American higher education. We are open to constructive reform and do not oppose legitimate government oversight. However, we must oppose undue government intrusion in the lives of those who learn, live, and work on our campuses. We will always seek effective and fair financial practices, but we must reject the coercive use of public research funding.

As of 10AM Eastern Time today (April 28, 2025), this open letter from the American Association of Colleges and Universities had garnered 523 signatures, and counting.

As I have stated many times for many years, Free Speech is a moral imperative. Not merely is it woven into the fabric of the United States Constitution, but even before there was a Constitution there was a moral obligation to hear even dissident voices.

Yet nothing in this world comes without consequence, and even freedom comes with a price that must be paid. Whether we wish to pay the price or not is irrelevant—the price of freedom is exactly what it is.

This is true throughout the United States. It is true in the groves of academe. It is true everywhere.

America’s academics can “reject” President Trump’s actions to their heart’s content. They will not escape the consequences both of their speech and their rejection.

Violence And Hate Are Not Speech

We must be clear on one key point: violence is not speech. Hatred is not speech.

Where people indulge, endorse, or allow violence and hatred, they are not engaging in speech.

We must bear this in mind as we apprehend this open letter from America’s academics, because violence and hatred are very much the context for the issues it raises regarding access to taxpayer dollars.

Specifically, America’s academics are challenging decisions such as that by Secretary of Education Linda McMahon to pull billions of dollars in grants and contracts from Harvard University owing to its failure to take a strong stance against antisemitism by both students and faculty.

The departments of Education; Health and Human Services; and the US General Services Administration announced Monday they are reviewing $8.7 billion in grants and more than $255 million worth of contracts between Harvard, its affiliates and the federal government, according to a news release.

“Harvard has served as a symbol of the American Dream for generations – the pinnacle aspiration for students all over the world to work hard and earn admission to the storied institution,” Secretary of Education Linda McMahon said in a statement.

“Harvard’s failure to protect students on campus from anti-Semitic discrimination - all while promoting divisive ideologies over free inquiry - has put its reputation in serious jeopardy. Harvard can right these wrongs and restore itself to a campus dedicated to academic excellence and truth-seeking, where all students feel safe on its campus.”

This is what the signatories to the open letter above consider to be the “coercive use of public research funding."

Those signatories also consider the Trump Administration’s decision to cancel some $400 Million in grants to Columbia University over similar concerns regarding antisemitic violence. Secretary McMahon was just as explicit over that funding pull:

“Since October 7, Jewish students have faced relentless violence, intimidation, and anti-Semitic harassment on their campuses — only to be ignored by those who are supposed to protect them,” she said in a statement. “Universities must comply with all federal antidiscrimination laws if they are going to receive federal funding. For too long, Columbia has abandoned that obligation to Jewish students studying on its campus. Today, we demonstrate to Columbia and other universities that we will not tolerate their appalling inaction any longer.”

This is what the the American Association of Colleges and Universities finds objectionable.

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Federal Dollars Bring Federal Laws

We should also note that Secretary McMahon followed this statement regarding charges of antisemitism on college campuses with written notice to 60 different institutions of higher education warning them of potential enforcement actions under Title VI of the Civil Rights Act for failures to take proper measures to protect Jewish students from anti-Semitic discrimination.

“The Department is deeply disappointed that Jewish students studying on elite U.S. campuses continue to fear for their safety amid the relentless antisemitic eruptions that have severely disrupted campus life for more than a year. University leaders must do better,” said Secretary of Education Linda McMahon. “U.S. colleges and universities benefit from enormous public investments funded by U.S. taxpayers. That support is a privilege and it is contingent on scrupulous adherence to federal antidiscrimination laws.”

Title VI of the Civil Rights Act1 is explicit and simple: no entity receiving federal funding is allowed to discriminate, period:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Title VI further directs the Federal government to terminate grants and other funding to institutions2 which do engage in any form of discrimination.

Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found.

If a college is permitting anti-Semitic behavior on its campuses, it is placing any and all federal funding it receives at risk.

Not only is that the explicit text of Title VI, that is the explicit warning Secretary McMahon sent out on March 10. Further, revocation of grants and termination of contracts for failure to address antisemitism on college campuses is not merely a permissible consequence, it is a legally mandated one.

Title VI fundamentally writes into federal law a long-standing common sense law known as Murphy’s Golden Rule: “He who has the Gold, makes the Rule.”

As the Federal government has the “gold” (grants and contracts), it makes the “rule”, and the rule is there is to be no discrimination including antisemitism on college campuses.

Nor can the colleges claim to be caught off guard by this requirement. Title VI of the Civil Rights Act has been on the books since its passage in 19643. Moreover, it has been longstanding policy within the Department of Education’s Office for Civil Rights that a number of anti-Semitic behaviors rise to the level of impermissible discrimination under Title VI4, and the courts have been sympathetic to that policy5.

Additionally, President Trump’s policies have long been in opposition to antisemitism. In December of 2019, during his first term of office, President Trump issued Executive Order 13899, “Combating Anti-Semitism”6, making it clear that anti-Semitic discrimination would be pursued by his administration as a Title VI violation:

It shall be the policy of the executive branch to enforce Title VI against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI.

President Trump reaffirmed Executive Order 13899 with Executive Order 14188, “Additional Measures to Combat Anti-Semitism“7.

It should come as no surprise to any institution of higher education that the Trump Administration is cracking down on anti-Semitic discrimination in colleges and universities. Under Trump Administration policy, the rule which attaches to federal “gold” is there is to be no discrimination including antisemitism on college campuses.

Period.
End of Sentence.
End of Discussion.

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Yes, There HAS Been Anti-Semitic Discrimination

Another point about which we must be explicit: has been anti-Semitic discrimination on college campuses across the country.

As I have discussed previously, most if not all of the “pro-Palestinian protests” which have occurred on college campuses since the genocidal terrorist attack by Hamas on October 7, 2023, is distinctly anti-Semitic in tone and in consequent behavior.

When the media reporting quotes the “protestors” making statements about “Burn Tel Aviv to the ground”, we are well past the point of debating contentiousness.

“[Izz ad-Din] Al-Qassam [Brigades], make us proud, take another soldier out,” anti-Israel demonstrators chanted on Friday night in a video published on social media by pro-Palestinian activist ThizzL. “We say justice, you say how? Burn Tel Aviv to the ground. Go Hamas, we love you. We support your rockets too.”

When a protest against the actions of the nation of Israel cause Jewish individuals at Columbia University to fear for their safety, it is harassment, not speech. That was the case last spring.

Rabbi Elie Buechler, director of the Orthodox Union-Jewish Learning Initiative on Campus at Columbia/Barnard, wrote on Sunday morning in a group chat with over 290 students that “The events of the past few days, especially last night, have made it clear that Columbia University’s Public Safety and the NYPD cannot guarantee Jewish students’ safety in the face of extreme antisemitism and anarchy.”

When Columbia University can assemble a 91-page report detailing how Jewish students were physically harassed and assaulted, that is intimidation and violence, not peaceable assembly and not speech.

Jewish students at Columbia University were chased out of their dorms, received death threats, spat upon, stalked and pinned against walls, as the Ivy League school devolved into a cesspool of antisemitic hate in the wake of Hamas’ Oct. 7 murderous raid on Israel.

When classes have to be canceled for fear of student safety, we are dealing with violence, not speech.

When Jewish students are advised to leave Columbia University for their own safety, we are dealing with violence, not speech.

Harvard University has over the past year been named in multiple lawsuits alleging “rampant” antisemitism, and former Harvard President Claudine Gay’s ineffectual response to such charges—including her failure to condemn calls for Jewish genocide during an appearance before Congress—led to her resigning under a cloud of controversy in January 2024.

Moreover, the antisemitism is hardly new. An October 2016 study8 by the Cohen Center for Modern Jewish Studies found that a substantial number of Jewish students at American colleges and universities had experienced various levels of antisemitism.

Perversely, the extent of anti-Semitic conduct within American higher education as well as its lengthy history gives rise to yet another form of antisemitism—gaslighting by the likes of Mathias Risse, Faculty Director, Carr Center for Human Rights Policy, who in response to the Education Department’s notifications of civil rights enforcement actions attempted a lengthy dismissal of the allegations.

But the large-scale characterization of American campuses as Antisemitic strikes me as an exercise of gaslighting by the Trump camp.

One almost has to admire the mental gymnastics Risse uses to arrive at this conclusion, beginning with a convoluted definition of “gaslighting”:

X gaslights Y in the presence of Z if X tries to persuade Y and Z that Y violates certain values or commitments that X, Y, and Z all are taken to endorse, whereas in fact it is X that violates them.

Merriam-Webster offers a far more straightforward definition:

the act or practice of grossly misleading someone especially for one's own advantage

At the core of the idea behind the term is psychological manipulation. People who gaslight are applying a variety of manipulative tricks to control and ultimately abuse others. While this most frequently occurs in the context of intimate relationships9, the techniques involved have application in the context of broader communications as well. Specifically, those who attempt to gaslight even in the public sphere do so by challenging the legitimacy of others.

The most paradigmatic gaslighting behaviors were direct accusations of epistemic incompetence, such as being “crazy,” “overly emotional,” or having deficient cognitive abilities. These accusations could take the form of concern for survivors but were more often framed as insults. It is possible for perpetrators to induce self-doubt by verbally implying or creating situations that imply that survivors are epistemically incompetent or behaving unreasonably. When confronted about their behavior, perpetrators may cause survivors to doubt themselves by turning-the-tables, defined as changing the topic of conversation toward some perceived bad behavior of the survivor. This led to situations in which survivors hoping to resolve points of relationship tension were left apologizing for unrelated or non-problematic behavior.

Risse does exactly this with his convolutions about how “anti-Zionism” is not “antisemitism”. As the behaviors at Columbia University as well as Harvard—behaviors which are extremely well documented—demonstrate, time and again this is a distinction without much difference.

To understand this, we need only look at the statements by “pro-Palestinian” protest groups such as Columbia University Apartheid Divest, which quite explicitly valorizes and celebrates Hamas:

However, even without considering that aspect, there is no doubt that CUAD unabashedly supports Hamas. Their own published statements make that crystal clear. We need look no further than their Substack essay valorizing October 7, 2023 on its one-year anniversary to see that.

Under a remarkably clear October sky, Columbia students flooded the steps of Low Library to commemorate the anniversary of the historic Al-Aqsa Flood.

However, we absolutely can look farther, for CUAD has not been shy about publishing such statements.

CUAD took great pains to derogate and demean Veterans Day in 2024, casting aspersions on all veterans of America’s armed forces.

On November 11, CUAD honored Martyrs Day. In the US, this holiday, known as Veterans Day, was created to honor the patriotism, love of country, and sacrifice of American veterans. We refuse to honor the US war machine and its imperial project, and we recognize atrocities unleashed on others through its existence. Instead, we have decided to take this day and claim it for those martyred by the Israel-US war machine as Martyrs Day. Today, we will honor the patriotism, love of country, and sacrifice of our martyrs in Palestine.

If Matthias Risse is ignorant of these and other statements by “pro-Palestinians”, then we should question the basis upon which he concludes that there is no “large scale” anti-Semitic behavior on college campuses.

If Matthias Risse is not ignorant of these statements, then we need to question his motivations in denying their explicit anti-Semitic content.

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Free Speech Is Freedom Of Choice, Not Freedom From Consequence

What the American Association of Colleges and Universities either fails to grasp or does not wish to acknowledge is that Free Speech hinges upon having a freedom of choice. It does not hinge upon a freedom from consequence (which is a “freedom” that does not now nor has ever existed anywhere).

Free Speech means people may choose to speak their minds. They may say whatever truths they have within them to say.

But Free Speech also means accepting that certain consequences come from all choices.

Dr. Martin Luther King did not complain about his incarceration in “Letter From A Birmingham Jail.” He accepted that was the consequence for the choices he made in protesting segregation in Birmingham Alabama.

The authors of the Declaration of Independence did not imagine their stance on American independence would be free from consequence, but rather declared their willingness to back that declaration with “our Lives, our Fortunes and our sacred Honor.”

When college administrators choose to elevate the noxious behaviors of the supporters of terrorism over the rights of Jewish students to pursue their educational ambitions without harassment or intimidation, when they choose to give greater voice to the supporters of Hamas than to others, they choose to put themselves at odds with the federal government. They choose to put their federal funding at risk.

No college was coerced by the federal government into tolerating antisemitism on its campuses. No university was coerced into relegating their Jewish students to second-class status. No institution of higher learning is coerced into accepting federal funds—taxpayer dollars—for their research and educational activities.

Free Speech means freedom of choice, and freedom of choice is inherently dangerous. Free Speech means I can call out those who apologize for and defend antisemitism, and all forms of bigotry and hatred. Free Speech means I am at risk of being attacked—online, and perhaps even in person—for doing so. Free Speech means I will offend at least some people by writing this. Free Speech means I will alienate at least some people by having a position they do not like.

I am not being coerced into this, just as colleges and universities are not being coerced by the Education Department’s aggressive enforcement of Title VI of the Civil Rights Act.

The teachable moment in this should be this lesson about consequence. We all must make choices. We all must choose when to speak, and how. We all must choose what consequences we are prepared to accept, and we must decide what consequences we wish to avoid.

If colleges and universities wish to retain their federal grants and contracts, if they wish to retain their access to taxpayer dollars, the choices for them are simple and certain: do not engage in antisemitism, do not engage in any form of discrimination against any student or faculty, and do not make any excuses for any form of discrimination.

That college administrators find this a difficult choice to make says quite a bit about what sort of people they are, and in what regard they hold their students and faculty. None of what it says is particularly nice and definitely not complimentary.

The American Association of Colleges and Universities chooses to reject the Trump Administration’s “coercion”. I choose to reject the American Association of Colleges and Universities’ lunacy.

What do you choose?

A textualist, originalist approach to the First Amendment would, to my way of thinking at least, argue that there are not.

My own stance on Free Speech is rhetorically simple: I believe Free Speech to be a Moral Imperative. I believe Free Speech is the foundation of a Free Society, and that without Free Speech we are lost as a society.

That said, why do I not join the prevailing trend among self-anointed libertarians and decry the deportations of Mahmoud Khalil and Rumesya Ozturk as violations of their rights of Free Speech? Why am I not up in arms at this naked attempt by the Trump Administration to silence legitimate political discourse?

My answer to such questions is also rhetorically simple: because this is not an issue of Free Speech—nor, if we are to properly defend and preserve Free Speech, can we allow these deportation actions to be seen through the lens of Free Speech.

We must understand this, because Free Speech is not merely a moral imperative, it is an essential part of the fabric of the Constitution of the United States.

The preservation of the right of Free Speech is not merely a philosophical talking point in the United States. The preservation of the right of Free Speech is the law. The preservation of the right of Free Speech is the Supreme Law.

So says the First Amendment.

Because Free Speech is a matter of law, when defending Free Speech we must necessarily debate the law. That Free Speech is a Moral Imperative is the rationale for the law, but the defense of Free Speech necessarily will be found in the law, not the Moral Imperative.

The First Amendment

Respect for first principles obligates us to begin with the text of the First Amendment itself. In all debates over Free Speech, the First Amendment is necessarily our lodestone, our needle pointing to Constitutional North.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The language certainly seems simple enough: Congress shall make no law that abridges a person’s freedom of speech. Certainly the definition of the term “abridge” is simple and straightforward, even using a dictionary of the time.

1. To make shorter; to epitomize; to contract by using fewer words, yet retaining the sense in substance - used of writings.

2. To lessen; to diminish; as to abridge labor; to abridge power of rights.

3. To deprive; to cut off from; followed by of; as to abridge one of his rights, or enjoyments. to abridge from, is now obsolete or improper.

4. In algebra, to reduce a compound quantity or equation to its more simple expression. The equation thus abridged is called a formula.

Accordingly, we may restate the First Amendment in modern terms simply by saying that Congress may not pass any law that shortens or diminishes a person’s freedom of speech, or deprives them of that freedom completely.

The prohibition, moreover, is absolute. There is no law which abridges a person’s freedom of speech that Congress may lawfully pass. There is simply no option, no condition, no exception by which that can ever be understood to happen.

We must understand that this is the position of the law, because we must also understand that when we look to the courts to adjudicate our disputes, we necessarily ask them to state with finality the particulars of the law. We do well to remember this is the duty of every jurist, as Chief Justice John Marshall stated so eloquently:

It is emphatically the province and duty of the Judicial Department to say what the law is.

As this is our bedrock understanding of the law, we may also be certain, as Marshall was certain, that it was logically, conceptually, and Constitutionally impossible for the Congress to pass a law which violated the particulars of the Constitution, including its Amendments.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

The Constitutional standard is therefore clear: any act of Congress which stands in contradiction to the Constitution—which is therefore repugnant to the Constitution—is from the outset null and void. There is not one single moment when such an act ever enjoys actual force of law, and there is not one single moment when such an act need ever be apprehended by any person as actual law.

An act of Congress which goes contrary to the Constitution is automatically null and void, whether or not the Supreme Court has ruled as such.

Moreover, as the Fourteenth Amendment guarantees to all persons the equal protection of the laws, the prohibition which is explicitly applied to the Congress is necessarily applied to all state law.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Thus we may be certain that no valid law which has been enacted by any legislature anywhere in the United States violates the tenets of the First Amendment. Any act of the legislature which did would not be valid law and would, legally speaking, never take effect.

Thus we may state as a logical principle that there is no law in the United States which actually abridges a person’s right of Free Speech. Constitutionally, they cannot exist.

Yes, this means that there are likely a myriad of laws on the books at both the federal and state level which arguably should not be counted as law, and should be considered vacated at once. For reasons of brevity that are intuitively obvious, I shall not be discussing those laws here.

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What Of The Law?

As we must debate the law when we are defending Free Speech, we must necessarily apprehend which laws are in play.

In the cases of Mahmoud Khalil and Rumesya Ozturk, the applicable laws are those laws which govern visas and deportations—i.e., Title 8, Chapter 12, Subchapter II, Part II and Part III of the US Code1.

The basic requirement of the law is that every immigrant except for refugees must have a properly issued visa in order to be admitted into the United States2. Refugee status is the only exception in the law, and even that exception is qualified under law3.

Nor is there any doubt but that this requirement is entirely Constitutional. Article 1 Section 8 of the Constitution explicitly authorizes and obligates the Congress to regulate both Commerce with foreign nations and a uniform law of naturalization. Every aspect of the act of entry into the United States, from the commercial act of travel to the legal act of seeking citizenship, falls entirely within the scope of Congress’ authority to legislate.

Further, we can clearly see that no concern regarding Free Speech arises merely from that regulation. Congress has the Constitutional power to decide who may enter this country and under what circumstances. This is black letter law and not subject to dispute at any level.

Drilling further into the law, we encounter the next section in the statutes, §1182, which details various criteria for denying a visa to a prospective immigrant alien4. For the purposes of the cases in question here, we need only look at one key part of that statute: prohibitions surrounding terrorism, involvement with terrorist groups, and support for terrorist groups, terrorism in general, or any terrorist acts or activities. The specifics are laid out in subsection §1182(a)(3)(B)(i). In summary, if one has any involvement in terrorist activity or any engagement with a terrorist group, the State Department can (and probably will) deny a visa application.

With respect to Mahmoud Khalil and Rumesya Ozturk, it is important to understand that one need not be specifically identified as a terrorist for the particulars of this statute to be applied. §1182(a)(3)(B)(i)(VII) encompasses any support for terrorism, defined as follows:

endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization;

§1182(a)(3)(B)(iii) goes on to define “terrorist activity” in detail. Suffice it to say, the activities of Hamas, particularly those which occurred on October 7, 2023 and since, very much fall within the scope of the applied definition: there was murderous violence, there was the taking of hostages, and it was clearly not for mere personal monetary gain.

Here we potentially encounter an issue of Free Speech. Is this statute saying that a person is prohibited from ever expressing support for activities legally declared to be terrorist activity, or for groups legally declared to be terrorist organizations?

If we accept the arguments of the self-anointed libertarians who make the Khalil and Ozturk cases into Free Speech issues, we must conclude that the statute does exactly that, and, arguably, would be therefore void as an impermissible violation of the right of Free Speech. In order for the visa revocations involving Mahmoud Khalil and Rumesya Ozturk to be issues of Free Speech, §1182(a)(3)(B)(i)(VII) at the very least needs to be understood to be void and not US law.

Ironically—and lethally, for their arguments—those who argue on behalf of Khalil in particular do their level best not to argue a nullification of this part of the statute. In its amicus brief filed with the courts on behalf of Mahmoud Khalil5, the Rutherford Institute glosses over this aspect of the law completely, and by so doing fundamentally concedes the point.

That is a problem for their argument, because by their silence they implicitly accept this portion of the statute under the legal principle of qui tacet consentire videtur (“He who is silent appears to consent”). As the late Justice Antonin Scalia pointed out in his concurrence in United States v Irvine6, such implicit acceptance has legal substance and legal ramifications.

In the case of Mahmoud Khalil’s deportation, the ramification is that if §1182(a)(3)(B)(i)(VII) is not unconstitutional, then no abridgement of Khalil’s freedom of speech can have occurred. Remember, the First Amendment is categorical and absolute, and precludes the Congress from every making a law which abridges the freedom of speech.

I will interject here that I do not see such a criterion for receiving or holding an immigrant visa to be an abridgement of the freedom of speech. The operation of §1182 is not to regulate what people may lawfully say but to regulate whom shall be deemed eligible for an immigrant visa—which regulation Congress has been given explicit and direct authority to make. Were the Rutherford brief to make an argument of unconstitutionality on such grounds I would have to say that argument was simply in error.

These points take on particular relevance because once a visa is issued, whether that visa is or is not revoked is entirely at the discretion of the Secretary of State—a point I have explored at length previously in discussing Rumesya Ozturk’s deportation:

Ms. Ozturk’s detention is due to her visa having been cancelled and deportation proceedings commenced. The State Department is within its rights to revoke her visa, at which point deportation is the default outcome. That’s the letter of the law3.

After the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation. Notice of such revocation shall be communicated to the Attorney General, and such revocation shall invalidate the visa or other documentation from the date of issuance: Provided, That carriers or transportation companies, and masters, commanding officers, agents, owners, charterers, or consignees, shall not be penalized under section 1323(b) of this title for action taken in reliance on such visas or other documentation, unless they received due notice of such revocation prior to the alien’s embarkation. There shall be no means of judicial review (including review pursuant to section 2241 of title 28 or any other habeas corpus provision, and sections 1361 and 1651 of such title) of a revocation under this subsection, except in the context of a removal proceeding if such revocation provides the sole ground for removal under section 1227(a)(1)(B) of this title.

Does the revocation of the visa violate Ms Ozturk’s First Amendment rights? No. Her utterances are not being criminalized—we know this because no charges have been filed. However, her utterances in support of the terrorist activity of Hamas and in particular the genocidal attack on October 7, 2023, places her very much in the category of a resident alien with a conflict against the United States.

Such is the letter of the law. These are the statutes as they exist, and with the ramifications being what they are, including that Mahmoud Khalil and Rumesya Ozturk are to be deported. The Rutherford brief—and the broader arguments made in presumed “defense” of the First Amendment—do not challenge the constitutionality of these statutes as they exist.

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How Should We Apply The Law?

From the Free Speech perspective, our choices are simple: either §1182(a)(3)(B)(i)(VII) is an unconstitutional abridgement of speech or it is not. If it is, then it is automatically void and cannot be used in any capacity. If it is not, then its application cannot possibly be a Free Speech issue. There is not a third option rationally available.

Following the logic of the Rutherford amicus filing, the self-anointed defenders of Free Speech do not challenge the Constitutionality of the particulars of §1182(a)(3)(B)(i)(VII). They concede the core of a substantive “Free Speech” challenge to Mahmoud Khalil’s deportation.

Instead, the Rutherford brief attempts to construct a Free Speech issue by characterizing the visa revocation and deportation as a “punishment”:

Our “liberty-loving society” does not permit deportation as a punishment solely based on expression the government disfavors

The Rutherford filing then attempts to litigate whether or not Mahmoud Khalil’s commentaries and actions warrant visa revocation as activities hostile to the foreign policy of the United States under §1182(a)(C):

An alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.

The filing goes on to argue that the Secretary of State does not have the power to revoke a visa on the basis of a person’s advocacy. There are two problems with this argument. The first is that the filing has already conceded the Constitutionality of §1182(a)(3)(B)(i)(VII), and thus has already conceded the legitimacy of using advocacy as a basis for visa or permanent residency status revocation. Related to that is the second defect, which is that the text of §1201 clearly states that visa revocation is at the Secretary’s discretion.

Obviously, the Secretary’s discretion does not extend to include unconstitutional abridgements of the freedom of speech. However, as the Rutherford filing already concedes that §1182(a)(3)(B)(i)(VII) is not an unconstitutional abridgement of the freedom of speech, it is contradictory to then argue that the Secretary cannot have discretion to use that statutory language as a criterion for visa revocation.

The Rutherford amicus brief, despite its protestations to the contrary, cannot be posited as a defense of Free Speech because it seeks to litigate its position on the content of Khalil’s speech. Straight away, that moves outside the boundaries of the First Amendment, because if we are litigating the content of Khalil’s speech we cannot be arguing that his capacity to engage in that speech has been in any way abridged. His utterances are a matter of record—clearly, they were not abridged. Indeed, in Holder the Court made that very observation, rejecting plaintiff’s First Amendment claims.

The Rutherford filing also ignores a statutory disqualification for naturalization in §1424(a)(5)7 for those who advocate violent overthrow of government—which again amounts to a tacit acceptance that such disqualification is not an abridgement of the freedom of speech. Specifically, naturalization is denied to all persons who

who writes or publishes or causes to be written or published, or who knowingly circulates, distributes, prints, or displays, or knowingly causes to be circulated, distributed, printed, published, or displayed, or who knowingly has in his possession for the purpose of circulation, publication, distribution, or display, any written or printed matter, advocating or teaching opposition to all organized government, or advocating (A) the overthrow by force, violence or other unconstitutional means of the Government of the United States or of all forms of law; or (B) the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally) of the Government of the United States or of any other organized government, because of his or their official character; or (C) the unlawful damage, injury, or destruction of property; or (D) sabotage; or (E) the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship

As I have detailed previously, the public statements of Columbia University Apartheid Divest (CUAD) are an unambiguous celebration of and support for Hamas, which equally unambiguously desires the violent assaulting and killing of members of the Israeli government, which is just as unambiguously an organized government. The position of CUAD, and Mahmoud’s clear and close involvement with CUAD, are on their face compelling arguments disqualifying Khalil for naturalization—and thus for revocation of permanent resident status.

Ah, but what of the consequence of being deported? Is that not a “chilling” effect on speech? Might that not have the effect of dissuading speech and thus is an abridgement of speech?

Here we run into the problem of construction. Khalil is not being charged with any crime. Rather, his visa is being cancelled and he is being deported. As a basic matter of statutory construction, an administrative proceeding is not comparable and should not be conflated with punishment or any form of criminal sanction.

While the Rutherford brief is substantively correct that a “liberty loving society” does not “punish” on the basis of political advocacy, the Rutherford brief is substantively incorrect to assert that the administrative proceeding of a visa and permanent resident status revocation is a punishment. This error of construction is made even more glaring by the brief’s tacit acceptance of the Constitutionality of statutory provisions which make specific forms of advocacy disqualifications for receiving a visa, holding a visa, or being naturalized as a US citizen.

The Rutherford brief attempts to argue that the position of the Supreme Court in Holder v Humanitarian Law Project8 precludes taking any action against Khalil. However, in Holder the finding of the Court was that mere expression of support for a terrorist organization is not “material support”. Unfortunately for Mahmoud Khalil, the standard of §1182 is not “material support”—which is itself a crime9—but merely “support”. As a visa revocation is not a criminal proceeding, but an administrative one, and as Holder spoke specifically to the pretexts for criminal prosecution, that standard has no bearing on the administrative proceeding revoking Mahmoud Khalil’s visa and permanent resident status.

Further, we must also understand that such administrative proceedings are, in large measure, not “justiciable”, for the simple reason that the courts have long held that they have limited authority over purely executive functions. Such has been the stance of the Court since Mississippi v Johnson10 in 1866. Much as is the case regarding adjudications of the Alien Enemies Act, the courts, by longstanding precedent, have limited jurisdiction regarding visa cancellations.

As Chief Justice Salmon P. Chase noted in Mississippi, the courts do not have the authority to enjoin the Executive Branch from carrying out its executive functions. Rather, Mississippi reiterates that the role of the court is to say what the law is.

As regards Free Speech, the operative question for the courts must be whether or not the First Amendment precludes the statutory language regarding support for terrorism in §1182(a)(3)(B)(i)(VII). The Rutherford amicus brief is unwilling to argue that point, preferring instead to litigate the Secretary of State’s decision to cancel Khalil’s visa on policy grounds.

If the “defenders” of Free Speech are not willing to make “Free Speech” arguments, we must conclude that Free Speech is not an issue, and that the First Amendment is not an issue.

If Mahmoud Khalil were charged with a crime as a result of his documented pro-Hamas advocacy, there would be potential questions regarding whether the charges were an impermissible abridgement of his right of Free Speech. If Mahmoud Khalil were charged with providing “material support” to Hamas on the basis of what is publicly known about his activities with CUAD, I would have no hesitation in calling such charges unconstitutional lawfare.

That is not the case here. Neither is it the case with Rumesya Ozturk. These are visa revocation and deportation proceedings, not criminal cases.

Do Khalil and Ozturk have rights even in administrative proceedings? Absolutely. However, rights of due process are not First Amendment rights of Free Speech. An argument that the government is depriving an individual of Fifth and Sixth Amendment rights of due process is not an argument that the government is abridging their First Amendment right of Free Speech. For the purposes of defending the principle as well as the right of Free Speech, I need go no further, as such defenses of right have moved out of the realm of the First Amendment.

Free Speech is a Moral Imperative. Free Speech is the foundation by which we have a Free Society and it is essential if we are to have a healthy society.

Yet Free Speech is not and never has been a complete freedom from consequence. Free Speech has never given any person license to lie—particularly to slander or defame another person—and neither has it given any person license to create imminent threats of harm. Free Speech has never given any person license to unilaterally abrogate an agreement—and a visa is fundamentally an agreement between a person and the government of the nation they wish to visit.

For the United States, part of the agreement for receiving an visa is that the individual will not advocate, endorse, or espouse any terrorist activity or terrorist group. Similarly, naturalization is itself an agreement, whereby the aspiring citizen-to-be pledges allegiance to the United States and fidelity to the Constitution of the United States, among other pledges and representations. Where an applicant for citizenship lies or makes any material misrepresentation of fact, or perpetrates any fraud during the naturalization process, citizenship can be revoked.

Free Speech cannot therefore be used to preclude visa cancellation when a person has violated the particulars of the visa agreement. Every visa comes with strings attached, and the government, for better or worse, is both authorized and obligated to pull on those strings to effect US policy, both foreign and domestic.

People who wish to advocate on behalf of Mahmoud Khalil and Rumesya Ozturk are certainly free to do so. I certainly will not advocate here that their obvious Free Speech rights be so abridged.

I will, however, point out the imperative when defending the principle of Free Speech to debate the laws. The moral question of Free Speech was answered over two centuries ago in this country, with the ratification of the First Amendment. The moral position of the United States is that people have an inalienable right of Free Speech. As the moral question is a settled question, when we defend Free Speech particularly against government action we must argue not the moral question but the legal question. We must be prepared to argue that laws are unconstitutional because they abridge the freedom of speech.

If the laws are not unconstitutional, and the amici filers in the Khalil case are not arguing that laws are unconstitutional, then by definition we do not have a Free Speech question. We cannot magically transform a question into a Free Speech question merely by blustering “but…but…Free Speech” because we find a particular policy or action disturbing or distasteful.

Government actions are at times distasteful. Unfortunately, those government actions are at times needed. Those government actions are at times permissible even if not absolutely essential.

When we find government action distasteful, we should speak out against it. We should argue passionately against it and seek to be a barrier to that action’s completion. That is the right of Free Speech writ large.

Yet if we wish to be effective in our advocacy, we must argue the particulars of policy, and we must argue the particulars of the law. We must not be content to merely vilify that which we find distasteful and rationalize that vilification as somehow relevant to Free Speech. We must be ready and willing to argue that laws are unconstitutional and should be voided.

Unless and until we take the firm stand that a law is unconstitutional because it abridges freedom of speech, we cannot argue a defense of Free Speech. Unless and until we take the firm stand that a law is unconstitutional, we are not arguing Free Speech at all, and we are hypocritical to claim otherwise.

As the Rutherford brief makes clear, the questions surrounding the deportations of Mahmoud Khalil and Rumesya Ozturk are many things. Questions involving Free Speech, however, are not among them.

Should we be outraged that his rights of Free Speech are being violated?

Should we be incensed that his right to peaceably assemble and seek redress of grievance has been nullified?

Should we be concerned that we might be likewise targeted for expressing political views contrary to those within the federal government?

The answer to all three questions is a simple and straightforward “No.”

The Columbia University “protests” were not peaceful, were not a peaceable assembly, were not speech, and so there are no First Amendment or Free Speech concerns which arise from consequences meted out to the participants.

Free Speech Is A Moral Imperative

Let us be clear: Free Speech is a moral imperative. Our moral obligation to ourselves is to not shy away from any speech, no matter how noxious the rhetoric. I believed this when I wrote in defense of Nation of Islam leader and appalling anti-semitic hate merchant Louis Farrakhan and I believe it now.

My position in this regard is categorical: we must defend Free Speech at every opportunity or we are not a Free People and we do not have a Free Society.

When I say that Free Speech is a moral imperative, I mean exactly that: we are called and obligated to speak our various truths, and to hear the truths of others. Free Speech is foundational to a Free Society, and to the premise of democratic governance. Free Speech is foundational to honest, upright, and ethical conduct. Free Speech is essential if we are to embrace human equality as a fundamental moral truth.

Having experienced censorship and cancellation for daring to challenge the prevailing “official” COVID narratives on LinkedIn, I can speak directly to the damage done when we do not defend the rights of all dissident voices, regardless of the disagreeable nature of their woreds.

In discussing the strange case of Mahmoud Khalil, we must keep the ideal of Free Speech always in our minds, not because Khalil is a martyr for Free Speech as some would claim, but because he is not, as even a brief survey of the coverage regarding the Columbia University protests fom last spring will establish.

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Columbia University “Protests” Were Not Peaceful, Therefore Not Speech

Any time we approach the topic of Free Speech, particularly here in the United States, we do well to keep in mind the full text of the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

When we evaluate the propriety of various protest actions, we necessarily engage with two of its articulated freedoms:

• The freedom of speech.

• The freedom to peaceably assemble.

Because a protest necessarily involves action as well as words, we inevitably find these two freedoms inextricably intertwined, to where the peaceable assembly becomes indistinguishable from the speech. However, as both freedoms are categorically protected from legislative abridgement within the text of the First Amendment, we are permitted the reductionism of simply labeling protests as speech.

There is, however, one caveat: for the reductionism to remain valid, the protest actions themselves must be “peaceable”. As with all terms Constitutional, this is a word with a specific meaning, both in modern apprehension and that of the 18th century.

The modern Merriam-Webster definition proceeds as follows:

1 a : disposed to peace : not contentious or quarrelsome

The Webster dictionary of 1828 yields this definition:

PE'ACEABLE, adjective Free from war, tumult or public commotion.

So long as a protest is not contentious, not quarrelsome, and free from tumult or public commotion, we may apprehend it as a mode of speech, which is to say a mode of Free Speech, and therefore protected from abridgement or circumscription.

However, the Columbia Univeristy protests of last spring were not at all peaceful. There was tumult. There was public commotion. They absolutely were contentious and quarrelsome.

When the media reporting quotes the “protestors” making statements about “Burn Tel Aviv to the ground”, we are well past the point of debating contentiousness.

“[Izz ad-Din] Al-Qassam [Brigades], make us proud, take another soldier out,” anti-Israel demonstrators chanted on Friday night in a video published on social media by pro-Palestinian activist ThizzL. “We say justice, you say how? Burn Tel Aviv to the ground. Go Hamas, we love you. We support your rockets too.”

Nor do we need to question the accuracy of the media reporting, as we have via social media video footage of that very chant.

We have protesters shouting at Jewish students of Columbia University that “the 7th of October is going to be every day for you.”

These are threats of violence. In the latter case, it is a specific threat of terroristic violence against a specific individual.

This is harrassment. This is intimidation. This is not peaceable assembly. This is not speech.

This fails the “Brandenburg Test”1, a legal formulation from Brandenburg v Ohio2 whereby incitement to imminent lawless action becomes itself actionable.

When a protest against the actions of the nation of Israel cause Jewish individuals at Columbia University to fear for their safety, it is harrassment, not speech. That was the case last spring.

Rabbi Elie Buechler, director of the Orthodox Union-Jewish Learning Initiative on Campus at Columbia/Barnard, wrote on Sunday morning in a group chat with over 290 students that “The events of the past few days, especially last night, have made it clear that Columbia University’s Public Safety and the NYPD cannot guarantee Jewish students’ safety in the face of extreme antisemitism and anarchy.”

When Columbia University can assemble a 91-page report detailing how Jewish students were physically harassed and assaulted, that is intimidation and violence, not peaceable assembly and not speech.

Jewish students at Columbia University were chased out of their dorms, received death threats, spat upon, stalked and pinned against walls, as the Ivy League school devolved into a cesspool of antisemitic hate in the wake of Hamas’ Oct. 7 murderous raid on Israel.

When classes have to be canceled for fear of student safety, we are dealing with violence, not speech.

When Jewish students are advised to leave Columbia University for their own safety, we are dealing with violence, not speech.

Such is the nature of the “protests” in which Mahmoud Khalil elected to participate.

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Support For Terrorism Not Allowed

For Khalil, who entered the United States on a student visa and later became a permanent resident alien (Green Card status), the support for Hamas is a problem, and a major one.

Section 212(a)(3) of the Immigration and Nationality Act3 specifically prohibits engagement in any form of support for terrorism or terrorist groups when applying for a visa.

People who wish to enter the United States cannot demonstrate on behalf of, advocate for, raise money for, or otherwise show support for Hamas, or for any other terrorist organization. That is the plain reading of immigration statutes.

Moreover, Congress is explicitly authorized—and required—to legislate requirements for immigration and naturalization within Article 1 Section 8 of the Constitution. Congress has both the right and the responsibility to enact such restrictions on whom is eligible for a visa and thus entry into the United States.

There is no inalienable right of entry. There is no inherent claim of right to a visa. Such a right does not exist within the pantheon of US civil rights, nor has it ever existed.

Nor is this a new circumstance. This has always been the state of US immigration law, and, as I have argued previously, immigration is a question of law, not of “justice”.

Secretary of State Marco Rubio made substantially the same case earlier this week when appearing on Face The Nation with Margaret Brennan, who required a bit of education on the matter (education Secretary Rubio masterfully provided).

Margaret Brennan: I want to ask you about a decision you made to revoke a student visa for someone at Columbia University this past week. The Wall Street Journal editorial board writes, the administration needs to be careful. It's targeting real promoters of terrorism, not breaking the great promise of a green card by deporting anyone with controversial political views. Can you substantiate any form of material support for terrorism, specifically to Hamas, from this Columbia student? Or was it simply that he was espousing a controversial political point of view?

Secretary Rubio: Well, not just the student. We're going to do more. In fact, every day now, we're approving visa revocations. And if that visa led to a green card, the green card process as well.

And here's why. It's very simple. When you apply to enter the United States and you get a visa, you are a guest. And you're coming as a student, you're coming as a tourist or what have you. And in it, you have to make certain assertions. And if you tell us when you apply for a visa, I'm coming to the U.S. to participate in pro-Hamas events, That runs counter to the foreign policy interest of the United States of America. It's that simple.

So you lied. You came. If you had told us that you were going to do that, we never would have given you the visa. Now you're here. Now you do it. So you lied to us. You're out. It's that simple. It's that straightforward.

Nor is there any question that Mahmoud Khalil understood the dimensions of the protests in which he chose to participate, as he acknowledged a concern to the media over risking his student visa.

Khalil added that he chose not to participate directly in the student encampments because he did not want to risk the university revoking his student visa.

He understood that these protests would—or at least could—devolve from defensible if noxious speech and venture into areas of actionable conduct (i.e., support for terrorism). He chose to participate in them anyway.

He chose to participate in actions which articulated clear and unequivocal support for the terrorist organization Hamas. The very nature and intent of these “protest” actions was specifically to show support for Hamas. Indeed, statements such as “the 7th of October will be every day for you” are explicit expressions of support for Hamas.

Mahmoud Khalil chose to participate in “these” protest actions.

He chose badly.

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Citizenship Matters

We must understand the fundamental distinction here between a citizen of this country and a non-citizen, even one who is here lawfully, with a valid visa and/or resident alien status.

By law, a “United States citizen” is understood to be a citizen of the United States either by law, birth, or naturalization4. As a citizen, such a person has the full panoply of rights available under US law5.

A person here on a student visa is not a citizen.

A person here with permanent resident status is not a citizen.

Non-citizens are by definition here on the sufferance and approval of the United States government. Non-citizens are here subject to the regulations and restrictions as defined by the Congress excercising its Constitutional mandate under Article 1 Section 8. Non-citizens can be deported when those regulations and restrictions are violated.

A citizen is not subject to deportation as a consequence of showing support for terrorism or a terrorist group. A non-citizen is subject to deportation as a consequence of showing support for terrorism or a terrorist group. That is how the law reads, that is how the law operates, and that is the Constiutional order of things.

People are going to have their opinions about Israel’s war with Hamas. Some people will favor the Arabs in Gaza. Some people will favor Israel. This will be true for citizen and non-citizen alike. The First Amendment extends to the speech on both sides full and categorical protection. The First Amendment does not extend to threats, violence, harassment, or intimidation on either side any protection.

Just as speech is not violence, violence is not speech. At Columbia University, the “protests” were not speech, but violence. Regardless of what might have been intended by the protest organizers, violence is what resulted.

Thus, there is no First Amendment issue at play here. There was no speech, thus the First Amendment is not involved.

Had the Columbia University “protests” not devolved into anti-semitic violence, harassment, and intimidation, Khalil favoring the Arabs in Gaza would not be a problem.

Had the Columbia University “protests” remained peaceable—had they remained speech—Khalil favoring the Arabs in Gaza would not be a problem.

The protests did devolve into anti-semitic violence, harassment, and initimidation.

The protests did not remain peaceable. The protests did not remain speech.

For Mahmoud Khalil, that’s a problem, and it should be.

Anyone who has done any sort of public speaking, and especially anyone who has had to field questions in the open, ad-hoc format of a press briefing, has undoubtedly encountered the particular stresses of that task.

You have to formulate a reasoned and reasonable answer to a question on the fly, at least sounding as if you are answering the question, while avoiding stepping on any toes or rhetorical landmines.

If you know your material well, it can actually be fun!

Karine Jean Pierre did not have fun yesterday. She would have done better to just stuck to the facts, or even just dodged the question altogether. Instead, she chose to have a public meltdown over “misinformation.”

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You can (and should) watch the full exchange above, but the transcript of what was said is worth reading, as it highlights not just actual “misinformation” but illustrates why the authoritarian left is so obsessed with controlling information flows and combatting “misinformation”.

Peter Doocy: And on this issue of funding, the administration has money to send to Lebanon without Congress coming back. But Congress does have to come back to approve money to send to people in North Carolina. Do I have that right?

Karine Jean Pierre: Here's what I'm going to be very clear about.

The President and the Vice President has had a robust, whole-of-government response to this. Hundreds of millions of dollars. I said it at the top, more than $200 million that we have directly put towards survivors here for disaster help. And that's because of this President's commitment to make sure that we are there for communities that are impacted.

We take this very seriously again. We take this very seriously.

And before the hurricane hit, we prepositioned more than 1,500 federal folks on the ground to help. And so we have made sure that every state has gotten their storm-requested emergency declaration. They requested it, and we made sure they received it. We've taken this very seriously. More than $200 million that we have provided to the impacted areas. But instead, people want to do disinformation, misinformation, which is dangerous. Which is dangerous.

Because then when folks on the ground hear that, they may not want to ask for the help that they need that is there for them that is there for them that's our focus here.

Peter Doocy: But president Biden is fond of saying show me your budget and I will tell you what you value. If he's got money for people in Lebanon right now, without Congress having to come back, what does it say about his values? There is not enough money right now for people in North Carolina who need it. That's not misinformation.

Karine Jean Pierre: Wait...No, that is...Your whole premise of the question is misinformation, sir. Yes, yes, it's misinformation.

Peter Doocy: Which part?

Karine Jean Pierre: I just mentioned to you that we provided more than $200 million to folks who are impacted in the area. And I just shared with you that people are deciding not to. People are deciding not to.

Peter Doocy: President sent a letter to Congress that there's not enough money to help North Carolina

Karine Jean Pierre: We're talking about the SBA disaster loan.

Peter Doocy: That's money for people in North Carolina.

Karine Jean Pierre: Yes. And that's important. And people in North Carolina need that.

Wait, this is nothing new. Peter, this is nothing new.

Congress comes together, they provide money, millions of dollars, for disaster relief. We're asking them to do the job that they have been doing for some time.

Peter Doocy: And I'm reading from a letter that President Biden sent to Johnson, McConnell, Schumer, and Jeffries. The President's letter is not misinformation. Would you agree?

Karine Jean Pierre: No the way you're asking me the question is misinformation there is money that we are allocating to the impacted areas and there's money there to help people who truly need it there are survivors who need the funding who need the funding and it's there.

Peter Doocy: You can't call a question you don't like misinformation

Karine Jean Pierre: I said that i actually said we have the money available to help uh survivors of hurricane Helene and also hurricane Milton. now...Now, there's going to be a shortfall, right? Because we don't know how bad Hurricane Milton is going to be. And so we're going to need additional funding. We're going to need additional funding.

Peter Doocy: That's exactly what I just asked about. And you said it was misinformation.

Karine Jean Pierre: No.

What you're asking me is why Congress needs to come back and do their job. That's what you're asking me.

Congress needs to come back and do their job and provide extra assistance, extra funding to disaster relief fund. That's what Congress needs to do, and we're going to continue to urge that.

You may not want that, but that's okay. That's what this president wants, and that's what the vice president wants.

Thanks, everybody.

And with that, she walked away from the podium in an obvious huff.

The public speaker in me just shook my head, as I thought to myself “amateur.”

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There is no doubt that it was an amateurish response. As Press Secretary, as the person at the podium, it is her job to do better with questions like that.

The crux of Peter Doocy’s question was simply this: how is it that the (Biden-)Harris Administration has $157 million to send to Lebanon without asking for funds from Congress, but has to ask for funds from Congress to attend to the needs of people devastated by Hurricane Helene (and about to be devastated by Huricane Milton)?

Both Secretary of State Anthony Blinken and Kamala Harris took victory laps over the weekend regarding the funding for Lebanon.

Meanwhile, on Friday, Joe Biden sent a letter to the leades of Congress, asking them to come back into session to approve supplemental funding for FEMA.

In addition, while FEMA’s Disaster Relief Fund has the resources it requires right now to meet immediate needs, the fund does face a shortfall at the end of the year.  Without additional funding, FEMA would be required to forego longer-term recovery activities in favor of meeting urgent needs.  The Congress should provide FEMA additional resources to avoid forcing that kind of unnecessary trade-off and to give the communities we serve the certainty of knowing that help will be ongoing, both for the short- and long-term.

Even if one assumes there is nothing untoward about sending aid money to Lebanon, given Israel’s ongoing war against Hezbollah and Hamas, the timing of the announcement, given the dire circumstance people are experiencing in Appalachia, should give anyone pause.

Ultimately, that was the subtext of Peter Doocy’s question: why is it okay to send $157 million to Lebanon right away but the people of Appalachia have to wait for Congress to reconvene?

Politics notwithstanding, it’s a fair question.

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It does not help matters when, in the same weekend, FEMA announces that its total expenditures on Hurricane Helene relief is at $137 million.

FEMA continues its robust response and recovery efforts in the Southeast following the devastation caused by Helene. Federal assistance for survivors has now surpassed $137 million, with FEMA’s mission remaining steadfast in helping communities recover and rebuild. 

$137 million is a lot of money….but it’s not $157 million.

The net effect of the optics here is that the people of Lebanon are being prioritized over the American people.

The (Biden-)Harris Administration can reject that all they want, and can complain loudly about the characterization, but there is no escaping the inevitability of the comparison.

That comparison looks even worse when one considers the numerous reports from people on the ground detailing all the ways in which FEMA is not delivering a “robust reponse.”

There’s Tulsi Gabbard’s homage to the people of Appalachia.

In both cases, I stood in awe of their resilience, strength, and what we in Hawaii call the aloha spirit — even those who lost everything, stepping up to do all they can for their neighbors, friends, and those in need.

Unfortunately, much like we saw on Maui, there are still many people who are not getting the assistance they need. Communications are still down in many isolated areas and small towns. The closest thing they have to emergency services is a volunteer fire department. Their limited emergency resources have been quickly overwhelmed and nobody from FEMA has come or knocked on their door to offer assistance.

There’s the experience of Chelsea Atkins, of Bat Cave, North Carolina, who’s given up on FEMA.

“FEMA called me and told me they wanted to inspect my house then called me back to say they couldn’t drive around the ‘road closed’ sign. They weren’t allowed,” local Chelsea Atkins, 38, told The Post.

“You can drive it by car for sure, it’s not that bad, you just have to drive around the ‘road closed sign’. I explained that to them. They said they couldn’t,” she said, recounting her maddening exchange with the embattled federal agency.

Left to fend for themselves, Bat Cave residents banded together — opening the roads and starting the arduous work of cleanup and recovery. Residents told The Post that they don’t need FEMA now — and at this point, they don’t even want the disaster relief agency to come.

There’s the observations of Congressman Cory Mills, who’s been spearheading a number of volunteer efforts in North Carolina.

In Asheville, folks got tired of waiting on FEMA, so local organizations took point in organizing relief and recovery efforts.

While Buncombe County had not yet set up aid distribution stations in the aftermath of the historic floods from Tropical Storm Helene, one nonprofit had taken it into their own hands — soliciting another national nonprofit to send aid.

Asheville Dream Center brought aid to the Asheville Mall on Sept. 29, likely becoming the first mass aid distribution site for necessities in the city. The nonprofit is the local arm of the nonprofit national Dream Center outreach ministry. The nonprofit Global Empowerment Mission was the first to respond to their call to distribute aid in the city, Asheville Dream Center Executive Director Michelle Coleman said.

Meanwhile, there are reports that residents in the area cannot even get enough body bags to properly attend to the dead.

It goes without saying that such reports suggest the death toll from Helene is considerably greater than has been reported thus far.

WIth such reports in hand, it is not possible to even doubt the extremity in which the residents of Appalachia now find themselves.

Their communities have been devastated. Their civic infrastructures have been destroyed. Their homes have been flooded and washed away. Their friends and loved ones have been killed.

Against this backdrop, Secretary of State Blinken and Kamala Harris decide to crow about sending millions of aid dollars—millions of US taxpayer dollars—to….Lebanon.

To which the only sane response can be “Whisky Tango Foxtrot?”

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To be sure, the pots of money from which foreign aid comes are different from the pots of money from which disaster relief funding comes. As an accounting principle, government agencies are not supposed to be able to move funds around without Congressional oversight and approval. The Constitution gives Congress the clear power of the purse and so only Congress can approve such transfers.

Yet, as Peter Doocy pointed out in his contratemps with Karine Jean Pierre, “show me your budget and I will tell you what you value.” It’s a quote that gets attributed to Joe Biden quite a bit.

The (Biden-)Harris Administration had budgeted enough money foreign aid that it just “happened” to have an idle $157 million laying around for when Israel expanded its war against Hezbollah, but didn’t budget nearly that much money for FEMA’s Disaster Relief Fund.

The (Biden-)Harris Administration had budgeted over $1 billion for FEMA’s “Shelter And Services” program, and not for FEMA’s Disaster Relief Fund.

FEMA, under the (Biden-)Harris Administration, prioritizes such “equity” over disaster relief, according to its own strategic vision and goals statement.

According to the (Biden-)Harris Administration budget, there is a clear inference to be made that nostrums of “equity” and supporting undocumented and illegal aliens enterying the United States get preferential treatment to ordinary Americans with the temerity to be born here and actually be US citizens.

Still, the State Department is not the Department of Homeland Security. Their budgets are different. Ultimately, that was (and is) the answer to Peter Doocy’s question.

The United States government has to be able to walk and chew gum at the same time. It has to execute foreign policy and domestic policy at the same time. That means it will from time to time disburse foreign aid at the same time it is disbursing FEMA disaster relief funds.

Doocy probably would not have been exactly satisfied with that answer—because in many ways it is not a satisfactory answer—but it is an answer. An answer was the one thing that Karine Jean Pierre did not actually get around to giving, and it was clear that it was the answer that made her uncomfortable.

She did answer the question because she did not want to answer the question.

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The political problem with the answer to Peter Doocy’s question is that from every perspective it makes the Administration appear to have some misplaced priorities.

It is politically problematic to place the disaster relief needs of other nations ahead of the disaster relief needs of American citizens.

It is politically dicey to place the shelter needs of illegal aliens ahead of the disaster relief needs of American citizens.

Arguably, however, that is exactly what the (Biden-)Harris Administration is doing.

That is what made Doocy’s question “misinformation.” Not that he was employing an invalid framework for his questions—he wasn’t—nor that he was stating something that was untrue—he wasn’t doing that, either—but that he was challenging the priorities and even the ethics of the Administration.

To Karine Jean Pierre, questioning the regime is the equal of misinformation Questioning the regime is the epitome of misinformation. It is very dangerous, or so she argued, to give rise to any doubt in people’s minds about whether the (Biden-)Harris Administration is a positive force for good. Let people think that the (Biden-)Harris Administration is anything but awesome and people might not dutifully line up and do as they are told.

The regime, apparently, must never be questioned. The regime must always be seen as acting in the best interests of the American People. Any question which even hints otherwise, or portrays the Administration in a bad light, is, to Jean Pierre, “misinformation”.

Contrary to what Peter Doocy said to her, she can—and will—declare any question she does not like to be “misinformation.”

This is why the notion of “misinformation” is so dangerous, why the mere acceptance of the term is inimical to Free Speech.

Labeling anything as “misinformation” is a none-too-subtle attempt to delegitimize it. Dismissing a question as “misinformation” is to imply the question is, somehow, a wrong question to ask.

Calling Peter Doocy’s question “misinformation” is to imply that Tulsi Gabbard’s experience, Cory Mills’ experience, and the experiences of people throughout Appalachia are somehow invalid and wrong. Calling his question “misinformation” is to iimply that these individuals all managed to miss all the wonderful and miraculous work that is being done by FEMA.

To Karine Jean Pierre, such impertinent questions and all that occasion them must be invalid, and therefore not merely silenced but also ridiculed and demeaned. To do otherwise is to invite into the discussion an unacceptable possibility—that the (Biden-)Harris Administration might actually be wrong about something.

Such is the cult of personality that surrounds the (Biden-)Harris Administration. Such is the psychotic and delusional mindset of the Administration and its faithful apparatchik. In their world, the duo of Joe Biden and Kamala Harris is the most successful Administration ever, the most empathetic Administration ever, the most intelligent and insightful Administration ever.

In the real world, the (Biden-)Harris Administration is alternately stupid and silly. In the real world, the duo of Joe Biden and Kamala Harris are sadistic even as they are sloppy. In the real world, the duo of Joe Biden and Kamala Harris are alternately idiotic, invidious, and insane.

In the real world, neither Joe Biden nor Kamala Harris can understand why people might find it objectionable that their Administration spends $157 million on aid to Lebanon but can’t find two fresh nickels to rub together for the Americans living in Appalachia.

Karine Jean Pierre literally cannot handle even a slight encounter with reality. And it shows.

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I have also seen how you have bravely carried on in the face of an unprecedented spike in threats targeting a range of public officials across the country. Over the past three and a half years there has been an escalation of attacks on the Justice Department's career lawyers, agents and other Personnel that go far beyond scrutiny, criticism, and legitimate and necessary oversight of our work. These attacks have come in the form of conspiracy theories, dangerous falsehoods, efforts to bully and intimidate career public servants by repeatedly and publicly singling them out, and threats of actual violence. Through your work you have made clear that the justice department will not be intimidated by these attacks, but it is dangerous and outrageous that you have to endure them. It is dangerous to target and intimidate individual employees of this department solely for doing their jobs, and it is outrageous that you have to face these unfounded attacks because you are doing what is right and upholding the rule of law.

That’s right—there has been no lawfare, no abuse of process, no abuse of civil rights, and civil liberties. Just fine upstanding civil servants doing their jobs and “upholding the rule of law.”

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It was just “the rule of law” to circumvent the Constitutional order and illegally appoint Special Counsel for the express purpose of targeting and harassing a political adversary to the (Biden-)Harris Administration.

It was just “the rule of law” when Manhattan District Attorney Alvin Bragg and Judge Juan Merchan colluded to contort and even rewrite New York law to bring a ludicrous and laughable set of “fraud” charges against Donald Trump for going along with Stormy Daniels’ blackmail scheme.

It was just “the rule of law” when Department of Justice officials joined Alvin Bragg’s office just to “assist” in this political persecution prosecution.

It was just “the rule of law” to indict Donald Trump under the Espionage Act, while refusing to indict Joe Biden for doing the exact same thing.

It was just “the rule of law” when Jack Smith, having secured one set of indictments against Donald Trump, continued to empanel grand juries to secure as many more indictments as he could possibly concoct.

It was just “the rule of law” when Donald Trump was indicted for the crime of challenging the “official” narrative that there was no fraud in the 2020 election.

It was just “the rule of law” when Fulton County District Attorney Fani Willis, along with her lover Nathan Wade—with ample assistance from the White House and the Department of Justice—constructed a RICO case against Donald Trump for daring to challenge Georgia’s certification of the 2020 election results.

It was just “the rule of law” when Colorado and Maine sought to illegally deprive Donald Trump of his rights of due process under the Constitution by arbitrarily declaring him an “insurrectionist”.

It was just “rule of law” when the (Biden-)Harris Administration targeted dissident politician and former Democrat Tulsi Gabbard for Stasi-like surveillance as retaliation for her having criticized the Administration openly and repeatedly.

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Merrick Garland can get triggered all he wants, but the reality remains that the (Biden-)Harris Administration has repeatedly weaponized the Department of Justice against Donald Trump specifically. As the House Judiciary Committee’s report documents, there is ample evidence of DoJ involvement even in Alvin Bragg’s state prosecution of Donald Trump—a line between levels of government that should never get crossed.

Prosecutors across the country have flouted and disregarded “the rule of law” for the sole purpose of harassing and intimidating Donald Trump.

Judges across the country have disregarded the plain language of the Constitution to illegally and arbitrarily declare Trump an “insurrectionist” and bar him from running for President—unconstitional “bills of attainder” which neither the federal government nor the states may ever enact against anyone.

All of this is amply documented. In the articles I have linked above I have sourced and provided that documentation—the statutes, relevant court cases, the text of the Constitution, and the statements of prosecutors and judges alike.

None of this is a “conspiracy theory”. As regards lawfare against Donald Trump, the evidence is overwhelming, enough so that it must be considered a “conspiracy fact”.

Kamala Harris may think she’s making a telling criticism of Donald Trump that he’s been indicted and convicted in a kangaroo show trial that even by her amateurish understanding of the legal system would be an embarrassing charade. In reality she’s making a telling self-criticism, that she and other Democrats see nothing wrong in making up “crimes” out of previously legal and lawful behavior just for the sole purpose of attacking a specific political adversary.

Merrick Garland may be triggered that the Department of Justice is being singled out for criticism after he’s allowed it to be used in nakedly political persecutions prosecutions of Donald Trump. In reality there has not been nearly enough criticism of either Merrick Garland or the Department of Justice for their unmistakably conspiratorial efforts to deny Donald Trump his fundamental civil liberties and eviscerating any notion of due process.

There is enough Free Speech left in this country that Merrick Garland can still feel some public opinion heat for his heavy-handed authoritarian approach to running the Department of Justice. There is enough Free Speech left in this country to annoy and even intimidate Merrick Garland—having thrown his lot in with an increasingly fascistic and authoritarian (Biden-)Harris Administration, he now may find himself having to answer for why he set aside his Constitutional oath of office and set aside the Constitution itself solely for the purpose of targeting the Administration’s political enemies.

Merrick Garland is wrong to complain about the criticisms the Department of Justice has endured. There is not nearly enough criticisms about the weaponized Department of Justice he has created, which he does not see as answerable to anyone, oversight be damned.

Merrick Garland, for three-and-a-half years, has weaponized the DoJ and helped empower prosecutors across the country to go after the political opponents of the (Biden-)Harris Administration. Now he’s upset that he’s getting some “criticism” of his blatantly unconstitutional management of the DoJ.

Merrick Garland should thank his lucky stars he will be able to get out of Washington, DC, before Donald Trump gets inaugurated next January. Merrick Garland has conspired to deprive Donald Trump of his fundamental Constitutional rights and civil liberties—and that happens to be an actual crime under federal law.

When Donald Trump wins in November—and I pray most fervently that he does win—Merrick Garland should be among the first to be investigated, indicted, and ultimately incarcerated for his corrupt and shameless mismanagement of the Justice Department.

Until the election, do not let anyone forget that, in the many iterations of The United States v Donald Trump, it is the government that is the actual defendant. It is the government that is has broken the law. It is the government that is criminal.

The Department of Justice does not stand any more for “the rule of law”. Merrick Garland has imposed instead “the rule of lawyers”. It is not an improvement.

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French prosecutors indicted the chief executive of popular messaging service Telegram Wednesday on charges of complicity in the distribution of child sex abuse images, aiding organized crime and refusing lawful orders to give information to law enforcement.

Prosecutors charged Pavel Durov with multiple offenses after four days of questioning following his arrest at an airport near Paris, ordering him to put up a 5 million euro bond and barring him from leaving France.

According to the government of France, Pavel Durov is “complicit” in these crimes because he would not hand over user information to law enforcement agencies investigating these crimes. According to the government of France, Pavel Durov is complicit in these crimes because he put rights of privacy and free speech over some ephemeral “duty” to serve as thought police for the French government.

If found guilty at trial, Durov faces up to 10 years in prison and a €500,000 fine.

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Consider for a moment the French government’s rationale: Pavel Durov is complict in crimes allegedly committed by users of the Telegram platform, because he would not spy or inform on Telegram users on behalf of the French government—or any government.

This is exactly the rationale that is being profferred by the French courts to the French people:

The Justice considers that the lack of moderation, cooperation with the forces of law and order and the tools offered by Telegram (disposable number, cryptocurrencies, etc.) makes it complicit in drug trafficking, paedo criminal offences and fraud.

Broadly speaking, the charges against Durov seem to fall into four general categories.

• Firstly, Telegram’s founder has been charged with being complicit in storing and distributing CSAM content, facilitating drug trafficking and facilitating organized fraud and other illegal transactions.

• •Second, the court claims that Telegram refuses to cooperate with law enforcement when they file a formal request for information or documents.

• •Third, Durov faces several charges related to Telegram’s cryptographic features as they haven’t been formally declared or certified by French authorities. These seem to be minor offenses according to professor of law Florence G’sell.

• •Fourth, Durov is accused of taking part in a “criminal association with a view to committing a crime or an offense punishable by 5 or more years of imprisonment”, as well as money laundering.

Moreover, based on how the wording of the indictments has been reported, the basis for these charges is that Durov is the CEO of Telegram.

The Centre for the Fight against Cybercrime (C3N) and the Anti-Fraud National Office (ONAF) have been involved in the investigation. In all, 12 charges have been filed against “a person unnamed” — a classic French judicial term to imply whoever is in charge of Telegram right now.

The sixth charge is the most vague:

A sixth charge on the prosecutor’s list is particularly hard to decipher. “Complicity — offering, selling or making available, without legitimate reason, equipment, tools, programs or data designed for or adapted to get access to and to damage the operation of an automated data processing system,” Prosecutor Laure Beccuau wrote.

This would appear to connect Durov to some measure of hacking or cybercrime activity, although the current reporting does not specify what.

This much is certain: The French government has been building this case against Pavel Durov for some time.

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As I noted the other day, the challenge presented by Durov’s arrest and now indictment amounts to a collision between the Free Speech rights of all individuals and the police power of governent zealously intent on enforcing the law.

How should we apprehend the seemingly anodyne phrasings of “lack of moderation” and “insufficient moderation”? At what point—is there even a point—where permitting even noxious speech becomes an intolerable offense?

Nor is there any denying that social media platforms are used for a variety of activities which are not merely crimes under the law, but are absolute moral outrages.

Criminal investigation is an eternal point of collision between civil liberties and law enforcement, a conflict which is magnified by the ongoing use of social media platforms for inarguably illegal activity. It bears mentioning that Facebook has come under fire for allowing a literal slave trade to take place, with domestic servants from the Middle East and Northern Africa being “advertised” on Instagram as well as the main Facebook platform.

An undercover investigation by BBC News Arabic has found that domestic workers are being illegally bought and sold online in a booming black market.

Some of the trade has been carried out on Facebook-owned Instagram, where posts have been promoted via algorithm-boosted hashtags, and sales negotiated via private messages.

A talking point reiterated by the courts and by corporate media is that the lack of content moderation makes Telegram a preferred medium for exchanging (and, arguably, storing) child sexual abuse material among other illegal forms of content.

While X owner Elon Musk and others have decried the investigation of Durov as a challenge to hands-off content moderation, child safety advocates say Telegram permits more illegal activity, including abuse images, than any other major network. It has some 950 million total users and is especially popular in Russia, elsewhere in Eastern Europe and the Middle East.

The near-absolute privacy Durov affords Telegram users arguably has been a driving force behind its adoption worldwide.

Another reason was the change in the privacy policy of the WhatsApp messenger, which can now share user data with other Meta applications. The Telegram team, on the other hand, refuses to grant access to messages and user data, even upon government requests, except in cases where a user is suspected of terrorism. 

It would seem that people—even those who do not break the law—are rather fond of the idea that Big Brother cannot watch them. It should surprise no one that those who do break the law have a similar desire to be free of prying eyes.

Nor can government claim any moral high ground regarding surveillance, or pretend that surveillance is only used for the “good” purposes of tamping out sexual predation, human trafficking, and similarly infamous crimes. Too often government has leveraged or sought to leverage surveillance in order to harass and intimidate political dissents.

Durov’s own life experience is itself a powerful testimony on the willingness of authoritarian regimes to make mere opposition government a “crime”, and to leverage law enforcement accordingly to harass and intimidate anyone even remotely connected to political dissident movements.

In early December 2011, mass protests started in Russia in the wake of State Duma elections. The rallies were principally organized and directed through private opposition groups on VKontakte. Federal Security Service (FSB) officials asked the management of the social networking service to block these groups, but Durov refused.

On December 11, members of an OMON squad knocked on the door of Durov’s apartment in St. Petersburg. There are no details in the film about this visit by security forces, but it is asserted that it was at this moment that Durov realized he would no longer work for VKontakte or live in Russia. On that day, he reflected on the necessity of having a secure channel of communication with his elder brother, Nikolai, one of the main developers of VKontakte, who had created the whole “engine” of the social media service. Three years later, Durov would indeed quit the company, leave Russia and launch Telegram.

With this as his personal experience regarding government oppression and censorship, it is not hard to fathom why Durov is a free speech absolutist with regards to Telegram. We do well to note that, at a time when Facebook and other social media platforms were accommodating government wishes to censor COVID-19 content, Durov refused to take down COVID content.

For example, during the COVID-19 pandemic, Telegram refused to remove fake posts about the coronavirus. Pavel Durov commented on this: “…we did not think it was our role to decide for our users what they should believe. […] In the 20 years of managing discussion platforms, I have noticed that conspiracy theories only get stronger every time moderators delete their content. Instead of putting an end to wrong ideas, censorship often complicates the fight against them. That’s why spreading the truth will always be a more effective strategy than engaging in censorship.”

For stances such as this, the French government calls Pavel Durov a criminal.

Howeover, we must not overlook that even Durov has mechanisms to report illegal and questionable content in public channels on Telegram.

Q: There's illegal content on Telegram. How do I take it down?

All Telegram chats and group chats are private amongst their participants. We do not process any requests related to them.

But sticker sets, channels, and bots on Telegram are publicly available. If you find sticker sets or bots on Telegram that you think are illegal, please ping us at abuse@telegram.org.

You can also use the 'report' buttons right inside our apps, see this post on our official @ISISwatch channel for details.

Note: If a scammer is pretending to be you, contact @NoToScam

Telegram also has a channel for publishing daily reports on content which is removed for violating either applicable law or Telegram terms of service.

One cannot say, therefore, that Durov is willing to tolerate without exception illegal and noxious content on Telegram. Where he is unwilling to moderate is in private one-on-one and group chats. Those are private and Durov does not wish to violate that privacy for any reason.

Could illegal conduct be taking place in those private chats? Absolutely. We can even concede that some does take place. Yet how is anyone, be they law enforcement officer or private citizen, to know in advance which private chats contain discussions or content of a criminal nature and which discussions do not? How could the “criminal” chats be filtered and monitored without surveilling and monitoring all chats?

Simply put, there is no capacity to use surveillance facilities with that level of precision and discrimination. It is not possible to evaluate content as criminal without evaluating all content. To spy on the criminals, Pavel Durov would have to spy on everybody.

Is there—should there be—a duty of care for social media platform operators that they should surveill and monitor private users and private group chats to seek out potentially illegal activity? The French government says there is such a duty of care

Pavel Durov apparently disagrees. I certainly disagree.

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It is easy to point at CSAM and similar content, to point at drug deals, even to point to terrorism, and cry “Foul!”. It is easy to say that such activities are not merely criminal but categorically immoral and in every regard “wrong”. It is easy to demand that those who traffic in such content and engage in such activities be punished to the fullest extent the law allows.

It is easy to point to these things and demand justice because they are clearly wrong.

At the same time, it is easy to point to the clear victims of censorship and defend them. It is easy to say that government is wrong for silencing dissident voices, and that social media is wrong for playing along with government demands for censorship.

It is easy to argue that LinkedIn was wrong when they cancelled me at the end of 2021, and that they were belatedly right to reinstate me last fall.

It is easy to point to the case of Steve Kirsch, who was also banned from LinkedIn (I believe he is still banned). It is easy to point to Alex Berenson, whose Twitter access was revoked and is now the subject of a lawsuit.

It is easy to point to the case of Tulsi Gabbard, who has been subjected to intrusive and Stasi-like surveiilance by TSA for the thoughtcrime of opposing the Biden-Harris Administration.

It easy to point to such instances and lament the misuse—and abuse—both of government power and of the license to censor that Big Tech social media enjoys in this country.

It is less easy to acknowledge that the powers which government demands to pursue the noxious criminals are the same powers government has used to silence people such as Tulsi Gabbard, Alex Berenson, Steve Kirsch, and myself.

It is less easy to point to the noxious rhetoric of someone like Louis Farrakhan, or the intemperate and at times unhinged flippancy of Milo Yiannopoulos, and defend their right to speak their mind, no matter how offensive some might find their words.

It is less easy, yet we must defend such speech and such individuals, for there can be no Free Speech if that which is offensive is not protected with the same zeal as that which is accepted.

It is even less easy to defend a criminal’s rights of privacy and of Free Speech, and to accord their data and their information the same deference and confidentiality we ostensibly argue should be shown to every well-intentioned law-abiding citizen.

It is even less easy, yet we must defend that speech and those individuals as well. We must protect their right to privacy as well. We dare not treat them any differently in terms of their civil liberties as any other individual.

If we fail to accord even the most vile criminal the same rights of privacy and Free Speech as the most virtuous social justice advocate, by that failure we reject any presumption that any rights are fundamental or inalienable.

By that failure, we raise government up to be the moral arbiter of us all. That we simply must not do, not for any reason.

Fundamental rights are not rights which are open to debate. They are not rights which are conditioned upon behavior or membership in a particular class of aggrieved citizen. As John F. Kennedy said so powerfully in his 1961 inaugural address, “the rights of man come not from the generosity of the state but from the hand of God.” Fundamental rights have never been ours to give, and therefore they can never be ours to take away, not for any reason.

I do not know exactly what motivates Pavel Durov to refuse to comply with government diktats to spy and surveill Telegram users. I do know that, regardless of his particular motives, his refusal serves to stand in defense of the rights to privacy and Free Speech which come to every Telegram user directly from the hand of God.

That is knowledge enough to conclude that Pavel Durov stands on the right side of this issue, and the French government stands on the wrong side.

To borrow a hashtag from Elon Musk, “#FreePavel”.

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In France, at least, that is the assertion which has been made, at least by implication, in Saturday’s arrest of Telegram CEO and founder Pavel Durov.

According to officials the 39-year-old billionaire was arrested under a warrant for offences related to the popular messaging app. The investigation is reportedly about a lack of moderation, with Mr Durov accused of failing to take steps to curb criminal uses of Telegram.

The app is accused of failure to cooperate with law enforcement over drug trafficking, child sexual content and fraud. Telegram has previously denied having insufficient moderation.

How should we apprehend the seemingly anodyne phrasings of “lack of moderation” and “insufficient moderation”? At what point—is there even a point—where permitting even noxious speech becomes an intolerable offense?

The French state argues that there is.

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Essential to understanding the implications of Durov’s arrest is recognizing the significance of the Telegram service as a social media platform. Founded by Durov and his brother in 2013, Telegram has grown to become one of the most popular social media platforms in the world.

In particular, Telegram is popular with Russians. However, the Telegram app has also become one of the top 5 most frequently downloaded applications worldwide.

Why is Telegram so popular? In part it is because of its committment to the principles of free speech, a fact corporate media concedes even as it takes backhanded swipes against those principles.

The company’s growth — it now has more than 900 million users — has been driven partly by a commitment to free speech. Telegram’s light oversight of what people say or do on the platform has helped people living under authoritarian governments communicate and organize. But it has also made the app a haven for disinformation, far-right extremism and other harmful content.

For the record, All Facts Matter also has a Telegram channel, albeit one which has fallen into disuse.

Nor is Durov’s committment to free speech merely an artifice or corporate pose. Shortly after founding Telegram, Durov left Russia rather than comply with government demands to shut down opposition voices.

The Russia-born entrepreneur lives in Dubai, where Telegram is based, and holds dual citizenship of France and the United Arab Emirates.

Durov, who is estimated by Forbes to have a fortune of $15.5bn (£12bn), left Russia in 2014 after he refused to comply with demands to shut down opposition communities on his VK social media platform, which he sold.

Telegram did not immediately respond to a Reuters request for comment.

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Reaction to Durov’s arrest has been vocal and defiant. Elon Musk—who is embroiled in his own disputes with the European Union regarding free speech on Twitter/X—tweeted shortly after Durov’s arrest hypothesizing people could soon be executed in Europe just for liking a meme.

Robert F. Kennedy, Jr., similarly sounded the alarm that free speech was once again under attack.

Kennedy’s own battles with government and corporate media censorship played a major role in his decision to join with Donald Trump to form a “unity party” backing Trump’s Presidential election campaign.

Tucker Carlson noted the palpable irony that Durov was arrested not by autocrat Vladimir Putin but by France—notionally one of the world’s leading “democracies”.

There is indeed no small amount of irony that it is Russian lawmakers who are calling Pavel Durov a “political prisoner”, and taking France to task.

Russian lawmakers have condemned his arrest, with Maria Butina - who spent 15 months in a US prison for acting as an unregistered Russian agent - accusing Europe of trying to seize control of Telegram.

"Pavel Durov is a political prisoner - a victim of a witch-hunt by the West," she said.

"The arrest of Pavel Durov means there is no freedom of speech - it means that freedom of speech in Europe is dead.

"Now basically they have a hostage and they will try to blackmail Russia, they will try to blackmail all the users of Telegram and not only try to get control but also try to block the network here in Russia."

The Russian media platform RT has also weighed in, calling attention to France charging Durov with “insufficient moderation” and failing to curtail Telegram’s use by criminals and those who spread “disinformation” or “misinformation.

According to French media, the Russian tech entrepreneur, who also has citizenship of France, the UAE, and Saint Kitts and Nevis, was detained after landing at Paris-Le Bourget Airport on Saturday and is set to appear before a judge on Sunday evening. The French authorities had reportedly issued an arrest warrant for Durov, arguing that insufficient moderation on his platform allows for Telegram to be widely used by criminals.

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Yet we should also note that these free speech concerns are at least conceptually validated by the virtue signalling Tweet of Alexander Vindman, who not only celebrated the arrest as a triumph of “accountability”, but also gave Elon Musk a dire warning that he, too, might face arrest in the EU at some point.

That this comes from Alexander Vindman deserves especial comment, as Vindman was one of the “star” witnesses in the Democrats’ execrable first impeachment of Donald Trump in 2019, which centered around the high crime and misdemeanor of Donald Trump having a phone call with the then newly-elected Ukrainian president Volodomyr Zelensky.

In particular, in his deposition before the impeachment committee, Vindman arrogated to himself the power to critique and assess the President’s views on Ukraine as being harmful to US interests.

When I joined the National Secunity Council in July of 2018, I began implementing the administnation's Uknaine policy. In the spring of 2019, I became aware of outside influencers promoting a false narrative of Ukraine inconsistent with the consensus views of the entire interagency. This narrative was harmful to U.S. Government policy. While my interagency colleagues and I were becoming increasingly optimistic about Ukraine's prospects, this alternative narrative undermined U.S. Govennment efforts to expand cooperation with Ukraine.

Nor is there any doubt that Vindman believed he was empowered to offer such critique—he stated as much during his opening statement.

I was concerned by the call. I did not think it was proper to demand that a foreign government investigate a U.S. citizen, and I was worried about the implications to the U.S. Govennment's support of Ukraine. I realized that if Ukraine pursued an investigation into the Bidens and Burisma, it would be interpreted as a bipartisan pIay, which would undoubtedly -- I'm sorry. I'm going to restate that. Sorry. I realized that if Ukraine pursued an investigation into the Bidens and Burisma, it would likely be interpreted as a partisan play, which would undoubtedly result in Ukraine losing the bipartisan support it has thus far maintained. This would all undermine U.S. national security. Following the call, I again reported my concerns to NSC's legaI counsel.

We should note that Hunter Biden’s involvement with the notoriously corrupt Ukrainain energy concern Burisma figured prominently in the House of Representatives’ recently-concluded impeachment investigation of Joe Biden.

Alarming even at the time of Trump’s first impeachment, however, was Vindman’s presumption that “the interagency”—a rather anodyne phrasing for that entrenched bureaucracy known elsewhere as “the Deep State”—somehow has a superior voice in setting and guiding US foreign policy than the President himself, at whose pleasure every member of every agency involved in that “interagency” bureaucracy serves.

This lionized advocate of government authoritarianism is who is now salivating over the prospect of seeing not just Pavel Durov but also Elon Musk behind bars.

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While it is undeniably within government purview to investigate actual crime, we must acknowledge that not even corporate media is alleging that Pavel Durov is at all involved in any of the potentially criminal conduct some allege takes place on Telegram. The complaint of “inadequate moderation” is a direct assertion that, somehow, a social media platform has a duty of care to police the speech (which is to say to police the thoughts) of its users.

The complaint presents a proposition that “disinformation” and “misinformation” are somehow intolerable societal evils. The complaint also presents the proposition that social media platforms are somehow supposed to assess what is and is not “misinformation”—or, rather, that they are supposed to accept the “official” diktats regarding same.

Against this proposition we have the reality of social media platforms such as LinkedIn censoring and deplatforming people for daring to challenge with empirical data the official narratives surrounding COVID.

Against this proposition we have the reality of social media platforms such as YouTube deleting video content—which is to say testimonial evidence—confirming the efforts of Big Tech to influence the trajectory of political debate and discourse in this country.

Against this proposition we have efforts by corporate media to deny and even delegitimize the numerous—and by now overwhelming—red flags establishing that the mRNA inoculations the government tried to force upon the entire nation are not merely ineffective against COVID, but are toxic and deadly in their own right.

Against this proposition about “misinformation” we have numerous and repeated efforts to silence and suppress important information solely because it conflicted with the “official” narrative.

When corporate media speak of “insufficient moderation”, this is what they mean. They mean that social media platforms are not helping to sustain the “official” propaganda put forward primarily by corporate media. They mean that social media platforms are not censoring enough speech, suppressing enough opposing ideas, silencing enough dissident voices.

Nor is that this takes place in France any assurance that such could not happen here. We must remember that, within the United States, social media platforms are already encouraged and incentivized to censor content, and have been for years.

Contrary to the prevailing narrative promoted by notional civil libertarians, the protections written into US law enjoyed by social media platforms are an unconstitutional license to censor speech.

Despite having a categorical right of free speech written into our Constitution, the reality of the law here in the United States is that there is already an affirmative duty of censorship asserted for social media platforms.

Censorship is becoming the moral imperative everywhere in the world.

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Thus we must remember—and thus we must constantly articulate—that Free Speech is and always will be the moral imperative.

When I say that Free Speech is a moral imperative, I mean exactly that: we are called and obligated to speak our various truths, and to hear the truths of others. Free Speech is foundational to a Free Society, and to the premise of democratic governance. Free Speech is foundational to honest, upright, and ethical conduct. Free Speech is essential if we are to embrace human equality as a fundamental moral truth.

Thus we must defy the moral preening of Alexander Vindman and his ilk, who would happily see men like Pavel Durov and Elon Musk behind bars. Thus we must defy all those who want to silence anyone daring to articulate ideas anathema to those who claim political power over the rest of us.

“Accountability” must never perverted into a rationale for silencing those dissident voices, or the people who would empower dissident voices. Censorship must always be understood to be a civic harm, and never a civic duty.

The European Union is wrong to cry about “insufficient moderation” on Telegram or any other platform. The European Union is wrong to attack Elon Musk for his embrace of Free Speech. Morally, they are wrong. Morally, their laws are wrong.

Corporate media is wrong to constantly pontificate about “misinformation”, whether in regards to COVID, Ukraine, Russia, China, or any other political topic du jour.

France is wrong to have arrested Pavel Durov. They should release him forthwith and not tantrum that he declines to aid and abet government efforts to silence dissident voices.

Morally, they are wrong. Morally, their laws are wrong.

Society cannot be free in even the smallest regard if people are not free to express their opinions and their points of view. That some people find such views offensive for whatever reason can never be deemed grounds for silencing and suppressing them.

Free Speech must always be the moral imperative. Without Free Speech, we can never enjoy a Free Society.

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After having done his level best to attack and drag the platform through the mud, is tucking tail and running away from the mess he helped create. I have spoken out before against his campaign for censorship on Substack, and I speak out against his complaint that Substack won’t censor (or won’t censor “enough”) now that he is exiting, stage left.

We should take a moment to read Casey’s own words, and understand his reflexive opposition to (indeed, hatred of) Free Speech.

And so, after reading the open letter from 247 writers on the platform calling for clarity on the issue, I waited for a response.

The response, from Substack co-founder Hamish McKenzie, arrived on December 21. It stated that Substack would remove accounts if they made credible threats of violence but otherwise would not intervene. “We don't think that censorship (including through demonetizing publications) makes the problem go away — in fact, it makes it worse,” he wrote. “We believe that supporting individual rights and civil liberties while subjecting ideas to open discourse is the best way to strip bad ideas of their power.”

This was the moment where I started to think Platformer would need to leave Substack. I’m not aware of any major US consumer internet platform that does not explicitly ban praise for Nazi hate speech, much less one that welcomes them to set up shop and start selling subscriptions. 

According to Casey Newton, the moment expressed Substack’s commitment to Free Speech was the moment Casey Newton no longer felt welcome on Substack. The moment Casey Newton believed he would not be able to drive away content he personally deemed objectionable, he elected to take his content elsewhere. The moment Casey Newton was denied the authority he arrogated to himself to decide what others could write, post, and think, he could no longer stand to post content on Substack.

Nor is this my speculation on what Casey Newton thinks. He tells us this himself, explicitly.

I’m happy to take my lumps here. I just want to say again that to me, this was never about the fate of a few publications: it was about whether Substack would publicly commit to proactively removing pro-Nazi material. Up to the moment I published on Tuesday, I believed that the company planned to do this. But I no longer do.

Casey Newton wants Substack to police content and automatically strike down all content Casey Newton defines as “Nazi”. This is what he has said, in plain English. That he does not trust Substack to play Thought Police is his stated reason why he is running away from Substack.

The irony here, which Casey Newton blissfully ignores, is that such insistence on censorship not just of content but of thought is what authoritarians do, not what libertarians do. People who are truly committed to ideals of personal liberty and a Free Society do not seek to unilaterally cancel the ideas of others.

Before Casey Newton waded into this “Nazi” kerfuffle, I argued this same salient truth:

Fearful of “fascists”, they present censorship as a “pre-emptive strike”, arguing that the only way to hold the authoritarians among us at bay is to use against them the main tool of authoritarians throughout history: censorship. In their fear, free speech becomes the authoritarian’s pathway to power. In their fear, the only way they see to block the authoritarian’s path is to go down it first.

Implicit in all the arguments in favor of censorship is this admission that censorship is what authoritarians do. Thus, the argument for censorship is invariably the argument for authoritarianism. The argument for censorship is the claim that the “enlightened” few should exert power and dominion over an unenlightened humanity—and that somehow this will prevent the “evil” few from exerting power and dominion over a virtuous humanity.

Casey Newton, by running away from Substack, is admitting this truth to the world even if he may be denying it to himself.

While Casey Newton may hide his disdain for the thoughts of others behind a preening posturing against “Nazis”, the unavoidable reality is that, to him and his ilk, “Nazis” are pretty much all those who disagree with him and who do not share his moral certitude about his ideas.

Equally unavoidable is the reality is that hatred, even of so-called “Nazis”, is wrong.

"Anti-vaxxer" has become the modern-day equivalent of "Raca" ("Raca" was an ancient Jewish epithet suggesting a person was "worthless" and contemptible), a term of derision and hatred. When even our presumptively objective news media casually uses such language, there is no conclusion to be made but that hatred for others is being normalized in the world. The very thing God commands us to not do is becoming commonplace, ordinary, and habitual.

The moment we dismiss those with whom we disagree as “Nazis”, in that moment we stray from the path and wander into the weeds of wrong thinking and wrong conduct. There is no way to embrace our fellow man, no way to love our fellow man even as we love ourselves, while at the same time seeking to silence our fellow man and suppress his thoughts. There is no scenario where such casual hatred, such banal “othering”, can coexist with the moral imperatives of love, compassion, and justice.

For this reason alone we must embrace Free Speech as a moral imperative. For this reason alone we must acknowledge that Free Speech is foundational to a Free Society. If we as individuals wish to remain free in thought and in conscience, we must accord everyone else that same freedom of thought and conscience, even when—especially when—we find their thoughts loathsome and repugnant.

Perhaps he will find Ghost a more friendly platform to his urges to control and regulate the thoughts and ideas of others. I suspect the more likely outcome is that, ultimately, he will again find himself confronted by “Nazis” who have the temerity to formulate thoughts against his wishes, and express ideas at odds with his own. People are ultimately individuals, who think and feel all on their own, without the need of a Casey Newton for guidance.

Myself, I rather enjoy people challenging me with ideas I do not like. All debate begins with disagreement, and all learning begins with debate. We cannot learn and we cannot grow if we do not first disagree with each other. This has always been the nature of humanity and it will always be the nature of humanity.

Casey Newton may be fearful of “Nazis” online. However, given his embracing of authoritarian belief in the virtue of censorship, the “Nazi” he should fear the most is the one in the mirror staring back at him. That is the “Nazi” doing Casey Newton the greatest harm.

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As my long-time readers may recall, when then White House COVID Czar Jeff Zients spouted off his execrable “winter of death” rhetoric in December 2021, I had a few things to say, mostly revolving around the question “on what planet does Jeff Zients spend most of his time?”

For daring to publish the URL to this little jeremiad against pharmaceutical authoritarianism, LinkedIn opted to suspend my account permanently a few days later.

I went through the usual round of appeals and pointing out that I had not in fact violated LinkedIn policy, as the “misinformation” was nothing more than the CDC’s own data sets, to no avail. LinkedIn assured me their decision was permanent and irrevocable.

At the time it was a bit of a body blow to my efforts to build up my readership for All Facts Matter. Substack Notes did not exist at the time, and I had already long been shadowbanned on Twitter (which, incidentally, I still am on my latest account, having had multiple others abruptly terminated without stated cause). LinkedIn had been the platform where I had my greatest levels of engagement.

As a small content provider hoping to grow into a somewhat larger content provider, deplatforming hurts. As someone who strives to back up everything he says with facts, data, and evidence, deplatforming for spreading misinformation really hurts. Knowing that the accusation is false doesn’t really minimize the indignity of being hit with a false accusation.

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Fast forward to the end of August. Out of the blue I get an email from LinkedIn about the company page I had set up for All Facts Matter.

Having been banned for going on two years, this was a rather odd email to receive. On a lark, I tried to log into my LinkedIn account and was redirected to a page that said my account was “temporarily suspended”. Maybe it’s the passage of time but it looked different from the “restricted” notices I had received in 2021.

What I was seeing now just looked different from this.

That sparked my curiosity. On a lark, I did the identity verification bit, which a few days later resulted in my account being reactivated.

Specifically, on September 6 I received this email:

It is a small matter for me to say “yes I will abide by the policy”, because my stance has always been that I had never broken the policy. My specific reply was this:

I expressly agree to abide by LinkedIn's Terms and Conditions.

I do not make claims of fact which are unsubstantiated or undocumented.

And, just like that, I was replatformed. Sort of.

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My account has been restored in full. All my old LinkedIn contacts appear to still be there, as are most of my followers from before. All of the postings and content I had made was still there. In all technical ways, my account has been restored.

Yet there is one thing that has not been restored—and probably can’t be restored. The “energy” and the engagements I had previously have not come streaming back. It appears that at least some of the people with whom I messaged and exchanged comments more or less regularly are no longer there, or no longer active. The enthusiasm is not there. That ephemeral sense of community that makes a social media platform engaging is not there.

Whether that comes back in time or not we shall see. It has been now over a week and while there is a bit of engagement when I share my articles to LinkedIn, it is not the same as it was.

Nor is it lost on me that what LinkedIn has given back, it could just as easily decide to take away again. I have no reason to believe their Ministry of Truth has been shut down; the tenor of their email restoring my account strongly suggests their censorship efforts are as strong as ever.

Why am I returning to LinkedIn, knowing they may decide to ban me yet again? I have two reasons.

The first is the obvious self-serving one: I am still striving to grow my readership here. To do that I need to raise the public profile of All Facts Matter wherever I can. The desire is that returning to LinkedIn will give me a few more subscribers and give my content that much more exposure. Even with LinkedIn’s censorship efforts that’s not a bad thing.

The second is a bit more sublime. If I truly believe that Free Speech is a moral imperative, if I genuinely believe that such is necessary for a Free Society, then I should not overlook an opportunity to say what I have to say. I still post on Twitter for this reason. Neither Twitter nor LinkedIn are what I would call friendly confines for my brand of data-driven analysis, yet it is precisely because the confines are not friendly that I am able to, in a small fashion, speak truth to power.

Whether it’s challenging the narrative on COVID, or calling out the Fed for its serial lunacies, it is important to speak the truth I have wherever I can reasonably do so. If anything, it’s more important that I post where the content is likely to be given less than a friendly reception, because it is among those who do not agree with me where I can have the greatest impact. It is among those who do not agree with me that there exists the opportunity to shift hearts and minds. I do not have any great hope of gaining a massive following on Twitter, or frankly on LinkedIn, yet it is important that I post on Twitter and on LinkedIn, because that is how one takes the fight to one’s adversaries.

Why am I posting about this now? Because I have made more than a few comments about being deplatformed. I have positioned myself alongside people like and as one who has been, in essence, silenced (canceled, deplatfomed, et cetera). Having claimed that mantle, simple respect for you, my readers, obliges me to say when I am putting that mantle down. It would be a gross insult to those who are still silenced, who are banned for real and not merely shadowbanned, to pretend that I still number among them. They deserve more recognition and more acknowledgment than that.

This much is absolutely certain: I believe LinkedIn was wrong to suspend my account at the time. I believed it then and I absolutely believe it now. I believe I have never violated their terms and conditions, and so it was a major injustice when they did suspend me. I have not said, nor will I say, that was ever guilty of posting any unsubstantiated claim of fact. I have not apologized for my commentary on LinkedIn, nor will I.

Will that be sufficient? I do not know.

Is this happening because LinkedIn realizes they need to walk back their censorship policies? I do not know.

Will I get banned yet again? I do not know—although I rather suspect this reinstatement will be rather short-lived. If the censorship policies have not changed it will be only a matter of time before I run afoul of them for recklessly endangering the Trigglypuffs with doses of factual evidence.

In the meantime, it’s one more platform I can use, one more chance to present my view of things to the wider world. For as long as it lasts, I will enjoy it at least that much. Beyond that is just not up to me.

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Unglossed

Spare me your idiotic free speech pearl-clutching

Well, I never! Alex Berenson is currently crestfallen that his former employer now considers government regulation of its conduct (i.e. output) to be a “thorny question,” as opposed to something that is philosophically unthinkable and legally proscribed…

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3 years ago · 19 likes · 92 comments · Brian Mowrey

This is far from the case; there are plenty of things I would personally render illegal to print immediately if I had a button that could somehow do the trick; likewise things that I would require to print. It would be illegal to portray the death of George Floyd as strangulation in all defiance of biological reality, for example; or discuss recycling without mentioning that it is largely futile and toxic, for another. In the former case no one would be wrongfully imprisoned for strangulating him. In the latter case recycling would cease as a practice and humanity would be free of those blue bins, and the homeless would cease sorting through the trash as much. Oh, how horrible these things would all be!

The “pearl clutching” which occasioned Brian’s essay was Alex Berenson’s admittedly self-absorbed but still on-point jeremiad against the New York Times for viewing First Amendment protections for speech a “thorny question.”

Unreported Truths

The New York Times has lost its mind. And by mind, I mean principles and understanding of the First Amendment.

You may have heard that Robert F. Kennedy Jr. testified yesterday at a Congressional hearing about censorship. But unless you read the New York Times, you probably did not see how the Times - the world’s most important newspaper, the outlet that sets the agenda for ALL non-conservative media …

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3 years ago · 1072 likes · 277 comments · Alex Berenson

I do not agree with everything that Robert Kennedy has to say. I do not agree with how Alex Berenson says much of what he says. I do not agree with the labeling of concerns over the First Amendment and the freedom of speech as idiotic. Yet while I might debate Robert Kennedy, Alex Berenson, or Brian Mowrey, I would never silence them nor countenance any effort to silence them.

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My thesis in these matters is simple: Free Speech is a moral imperative. This I have long believed, and this I have long defended—even writing in defense of the quite detestable Louis Farrakhan when he was deplatformed in 2019, along with social media malcontents Paul Joseph Watson, Milo Yiannopoulos, and Laura Loomer.

Why am I composing a defense of Louis Farrakhan and not Paul Joseph Watson or Laura Loomer? The reason is simple: I generally agree with what Paul Joseph Watson and Laura Loomer have to say. Defending their rights of free speech is easy. 

Yet it is not just the agreeable speech that needs protection, but the disagreeable as well.  It is not just the popular idea that we have the First Amendment, but for the unpopular idea as well.  No matter how unpopular Farrakhan' ideas might be, no matter how disagreeable his words, he retains the right to speak his mind freely.  In light of the simultaneous banning of Paul Joseph Watson, Laura Loomer, and Louis Farrakhan, I rise first in defense of Louis Farrakhan, not because I agree with his words or support his ideas, but because I despise his words and condemn his ideas; I rise first in defense of Louis Farrakhan because, for me, his is the offensive speech wherein the true purpose of the First Amendment is realized. With full appreciation of the irony in such defense, Farrakhan gets top billing among these latest victims of censorship.

Brian himself writes on topics that Big Tech Social Media frequently has sought to censor and suppress—in particular, the lunacy of the COVID mRNA inoculations.

If the reader is familiar with the ascendant “alt right,” all that I have to say here will be semi-obvious; at the same time as a critic of the Covid vaccines, I trade in censored opinions and would seem an obligate free-speech supporter.

To his credit, his acknowledgement of this forces us to confront the prospect of there being societal value in censorship seriously. This is true whether we read his essay as an exercise in self-contradiction or in satire. Yet whether self-contradiction or satire, the end point is the same: a cynical and philosophically unsustainable depiction of Free Speech as little more than a leitmotif celebrating one’s own political and moral viewpoints. This is not so, and we must never make the mistake of thinking that it is so.

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When I say that Free Speech is a moral imperative, I mean exactly that: we are called and obligated to speak our various truths, and to hear the truths of others. Free Speech is foundational to a Free Society, and to the premise of democratic governance. Free Speech is foundational to honest, upright, and ethical conduct. Free Speech is essential if we are to embrace human equality as a fundamental moral truth.

Nor is this merely me saying this for the sake of saying it. The ideal of Free Speech has existed within human thought since antiquity.

Parrhêsia (παρρησία) was one of the cornerstones of Athenian democracy1.

The ancient Greeks pioneered free speech as a democratic principle. The ancient Greek word “parrhesia” means “free speech,” or “to speak candidly.” The term first appeared in Greek literature around the end of the fifth century B.C.

During the classical period, parrhesia became a fundamental part of the democracy of Athens. Leaders, philosophers, playwrights and everyday Athenians were free to openly discuss politics and religion and to criticize the government in some settings.

Proverbs 31:8-9 charges us to speak up in defense of others.

Open your mouth for the dumb,
for the rights of all who are left desolate.

Open your mouth, judge righteously,
maintain the rights of the poor and needy.

In Isaiah 62:1, the prophet Isaiah proclaims Free Speech as foundational to righteousness.

For Zion’s sake I will not keep silent, and for Jerusalem’s sake I will not rest, until her vindication goes forth as brightness, and her salvation as a burning torch.

In Esther 4:14, Esther’s uncle, Mordecai, counsels her to speak up in defense of the Jewish people, when Haman plots genocide.

For if you keep silence at such a time as this, relief and deliverance will rise for the Jews from another quarter, but you and your father’s house will perish. And who knows whether you have not come to the kingdom for such a time as this?

At the same time, Ecclesiastes 7:21-22 counsels us to be tolerant of what others have to say.

Do not give heed to all the things that men say, lest you hear your servant cursing you; your heart knows that many times you have yourself cursed others.

While it may be fairly said that Free Speech is a moral imperative much more honored in the breach than in the observance, even saying that leaves us still with the acknowledgement that Free Speech is a moral imperative, and has been for societies both ancient and modern.

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That the ancient Greeks would have notions of Parrhêsia , and that exhortations to both speak truth to power and be tolerant of others speaking truth to power are found throughout the Old Testament establish that Free Speech as a moral principle dates back to the very origins of Western civilization. Free Speech is not some passing fancy, or a convenient defense of that which is politically convenient or popular.

Quite the contrary, Free Speech frequently has a price tag. As the truism goes, “freedom is never free.” Often we must sacrifice for the sake of speaking our particular truth, especially when that truth discomfits those with political power.

The execution of Socrates and the house arrest of Galileo both attest to the very high price people have been called to pay for voicing ideas those with political power found uncomfortable. My own cancellation from LinkedIn, and Alex Berenson’s suspension from Twitter, are but two of an endless listing of examples of people that Big Tech Social Media have sought to punish for daring to challenge the prevailing orthodoxy.

Moreover, the execution of Socrates and the house arrest of Galileo stand as proofs against Brian’s contention that “society functions on taboos”. If society were dependent upon its taboos just to exist, the sufferings of Socrates and Galileo would not be memorable. If taboos were essential to functioning society we would not elevate and canonize Dr. Martin Luther King, Jr., while criticizing and condeming George Wallace.

Additionally, whether Brian’s essay is serious or satirical, we are still presented with a number of morally challenging statements, perhaps the most notorious is this aside on racism:

More broadly, what is objectionable about the American cultural religion’s fetishization of free speech (FREE SPEECH!) is that it renders invisible the inorganic suppression of dissent that takes place during any epoch of liberal “progress.” If it were understood that racism is only “wrong” because no one is allowed to say otherwise, lest they be exiled from society, opposition to the liberal orthodoxy might be more widespread.

If we accept the presented thesis that moral taboos are merely the prevailing consensus opinion of the prevailing culture, then the postulate that racism (and, by implication, all forms of bigotry and discrimination) is merely “wrong” because the prevailing consensus opinion says it is wrong follows directly. Yet it is in such dismissal of the wrongfulness of bigotry that we find the clearest refutation about morality and taboos.

If the attitude that bigotry is intrinsically wrong is merely prevailing consensus opinion, then we must reject the reasoning Dr. Martin Luther King, Jr., applied to the topic in his “Letter From A Birmingham Jail”.

Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an "I-it" relationship for an "I-thou" relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and awful. Paul Tillich said that sin is separation. Is not segregation an existential expression 'of man's tragic separation, his awful estrangement, his terrible sinfulness?

It takes no great leap of logic to extend Dr. King’s thesis on segregation to cover racism, bigotry, and prejudice broadly. However such mindsets present themselves, they still amount to a fundamental objectification of another human being, and an attempt to dehumanize that other person. If we legitimize such mindsets as being the prevailing consensus opinion, we inevitably invite that same dehumanization be visited upon ourselves.

To count such attitudes as being in any way “moral” is thus to invite nihilism. By direct consequence, racism, bigotry, and prejudice are intrinsically and eternally immoral, regardless of what the prevailing consensus opinion should be.

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As the history of Dr. King and the Civil Rights movement itself shows, our society has certainly embraced many morally wrong views. Some have been and are being moderated. Some are still held. Some have been properly jettisoned as being wrong. We are hardly a perfect people, and ours is hardly a perfect society. We do not live in a perfect world. At best, we live in a perfectible world.

However, in order that we might strive to perfect our society, in order to address where our society gets morality wrong, we require honest and open discussion about all things. We cannot have such honest and open discussion if we permit speech to be suppressed based on the whimsy of either a majority or an extremely vocal minority. This inevitably brings us back to my original premise, that Free Speech is a moral imperative. Speech must be permitted, tolerated, and even celebrated, or else we cannot improve our situation.

How, then, do we apprehend Brian’s essay that extolling the virtues of Free Speech is but a “fetish”, and nothing more?

If we take it seriously, then we must reject it, based on the reasoning I have stated herein. If we take it as satire, then we must still reflect on its articulated points, which again leads us to the reasoning I have stated herein, or reasoning very much like it.

Whether serious or satire, the one thing we must not do is accept the points articulated in the essay, for regardless of the intention behind their articulation, those points are to the last wrong.

Society is not held together merely by shared taboos. Morality is not merely a prevailing consensus opinion. Free Speech is not idiotic.

Free Speech is and always has been a moral imperative.

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This is the way the world ends
This is the way the world ends
This is the way the world ends
Not with a bang but a whimper.

Similarly, it appears that seemingly momentous cases before the Supreme Court end not with a deft ruling and a moment of legal clarity, but rather an anticlimactic kicking of a legal can down the jurisprudential road.

Such was the case yesterday in the twin rulings by the Supreme Court in Gonzalez v Google1 and Twitter v Taamneh2, both which pointedly declined to even take up the questions of free speech and censorship raised in their respective petitions for certiorari.

But in a unanimous opinion by Justice Clarence Thomas, the court ruled that the connection between what the social media companies did and the attack was "far removed." The families, Thomas wrote, "failed to allege that defendants intentionally provided any substantial aid" or "otherwise consciously participated" in the Istanbul attack.

The questions of the validity and applicability of what is now generally known as “Section 230”3—an abbreviated reference to the Communications Decency Act, Section 230, a law passed in 1996 intended to shield platforms from liability for the noxious and potentially tortious speech of their users—were not taken up at all by the Court. The rulings leave Section 230 very much intact, but also leave potential Constitutional challenges to the law very much intact.

In sum, the rulings were to maintain the status quo. For this reason, advocates on both sides of the Section 230 debate should not read too much into these rulings.

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In an interesting bit of role reversal, while much of the initial discussion in the media centered on the Google case, the Court opted to present the substance of their legal reasoning in Twitter v Taamneh. However, as both cases cover the same legal terrain, the discussion of one arguably becomes the discussion of the other—which was ultimately the Court’s reasoning in issuing a short per curiam ruling dismissing the Google4 case and remanding it to the lower courts.

We need not resolve either the viability of plaintiffs’ claims as a whole or whether plaintiffs should receive further leave to amend. Rather, we think it sufficient to acknowledge that much (if not all) of plaintiffs’ complaint seems to fail under either our decision in Twitter or the Ninth Circuit’s unchallenged holdings below. We therefore decline to address the application of §230 to a complaint that appears to state little, if any, plausible claim for relief. Instead, we vacate the judgment below and remand the case for the Ninth Circuit to consider plaintiffs’ complaint in light of our decision in Twitter.

In both cases, however, a key contention against Big Tech’s liability shield via Section 230 was that, as their algorithms highlighted and putatively promoted pro-ISIS content, neither Google nor Twitter was entitled to Section 230 protection.

The short version: the plaintiffs argue that Google did (and does) more than just provide a platform for content. In their argument, Google takes concrete steps that help provide the audience as well, and thus should not receive the protection imputed by Secton 230(c)(1).

In Twitter v Taamneh, and thus in Gonzales v Google by imputation, the Court declined to even take up the Section 230 question, choosing instead to focus on other aspects of the legal claims presented. Perhaps unsurprisingly, corporate media is spinning this as a “clear win” both for Big Tech and for the durability of Section 230 overall.

The court’s decision to sidestep Section 230 in the decisions is a victory for Google and other social media companies, who argued that any change to the provision could upend the Internet, leaving companies exposed to lawsuits over their efforts to police offensive posts, photos and videos on their service.

Corporate media does get this much correct: In both rulings the Supreme Court pointedly declined to examine any aspect of Section 230.

Depending on how the Supreme Court handled it, the Gonzalez v. Google case in particular had the potential to change legal interpretations of Section 230 of the Communications Decency Act, weakening the law shielding tech companies from liability for content uploaded by their users. Because the court decided that the tech companies were not liable for the Islamic State’s actions under existing anti-terrorism law, it did not delve further into reexamining Section 230’s protections around those issues.

Indeed, at the time of oral arguments, a number of observers including myself presumed that the Section 230 aspects of both cases would be the key issues addressed by the Court.

Suffice it to say, one or the other of these views will likely prevail when the Court issues its final ruling later this year.

Suffice it to say, we were all wrong.

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It is worth noting that Alex Berenson takes a narrower view of the Court’s ruling, opting to view the rulings as an assessment of the relatively weak legal arguments being presented:

Unreported Truths

Social media censorship update: the Supreme Court keeps its Section 230 powder dry

On Thursday, the Supreme Court unanimously found that social media companies cannot be held liable for hosting content from terrorist groups like the Islamic State. But the biggest legal question facing social media companies, and the hundreds of millions of Americans who use them, remained unanswered. The Court made no judgment on the federal law called…

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3 years ago · 334 likes · 24 comments · Alex Berenson

That’s because the Court - rightly - found the two lawsuits were too weak on their own merits to proceed. In both cases, the families of Islamist terror victims claimed the companies had “aided and abetted” the attacks by hosting videos from the Islamic State and other terrorists. But the families did not allege that the companies had done anything but show videos which some of the terrorists might have seen.

Berenson somewhat predictably then hints that his own litigation regarding Twitter will be more impactful and dispositive towards the future of Section 230.

So it remains to be seen what the Court will do in a case when the companies were neither “passive” nor “largely indifferent” to the way they treated users - or when they faced federal pressure to take action, at the apparent risk of losing their precious 230 protection.

Like Berenson v Biden.

Whether Berenson’s own case will prove to be the grand statement on Free Speech he hopes it to be remains to be seen. I do not have a comment to make on his case and am not going to visit that topic here.

However, we should also note that the Court’s ruling in Twitter v Taamneh, while declining to take up Section 230 explicitly, does offer us some indication of how the court might view future Section 230 challenges.

A key contention in Twitter was that Twitter was liable for damages under the Justice Against Sponsors Of Terrorism Act (JASTA)5, which allowed victims of terror attacks to pursue claims against anyone who “aids and abets” an act of terrorism6.

In an action under subsection (a) for an injury arising from an act of international terrorism committed, planned, or authorized by an organization that had been designated as a foreign terrorist organization under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189), as of the date on which such act of international terrorism was committed, planned, or authorized, liability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.

In the Google case, the “aiding and abetting” was notionally the result of Google’s algorithmic “recommending” of ISIS-related content, whereas in Twitter it was the presumed failure of Twitter to properly police its platform to remove such content.

Yet while both cases specifically raised Section 230 in their petitions for certiorari, Justice Thomas’ ruling opted instead to address the substance of the core claim under 18 USC 2333(d)(2)7.

As always, we start with the text of §2333. See Bartenwerfer v. Buckley, 598 U.S. 69, 74 (2023). Here, that text immediately begs two questions: First, what exactly does it mean to “aid and abet”? Second, what precisely must the defendant have “aided and abetted”?

As the legislative history of JASTA made specific reference to an earlier federal case involving extended liability, Halberstam v. Welch8, Thomas gives a fairly lengthy discourse on that case to establish the framework for understanding the terms “aid and abet”.

The key conclusion Thomas reaches9 in his discourse on Halberstam is that the proper framework for assessing the terms “aid and abet” is a common-law understanding of the principles.

We therefore must ascertain the “basic thrust” of Halberstam’s elements and determine how to “adap[t]” its framework to the facts before us today. See 705 F. 2d, at 478, 489, and n. 8. To do so, we turn to the common law of aiding and abetting upon which Halberstam rested and to which JASTA’s common-law terminology points.

This becomes the fulcrum for Thomas’ reasoning, for the common-law understanding of “aid and abet” has always carried a presumption of limitation10.

Importantly, the concept of “helping” in the commission of a crime—or a tort—has never been boundless. That is because, if it were, aiding-and-abetting liability could sweep in innocent bystanders as well as those who gave only tangential assistance. For example, assume that any assistance of any kind were sufficient to create liability. If that were the case, then anyone who passively watched a robbery could be said to commit aiding and abetting by failing to call the police. Yet, our legal system generally does not impose liability for mere omissions, inactions, or nonfeasance; although inaction can be culpable in the face of some independent duty to act, the law does not impose a generalized duty to rescue. See 1 W. LaFave, Substantive Criminal Law §6.1 (3d ed. 2018) (LaFave); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 373–375 (5th ed. 1984) (Prosser & Keeton). Moreover, both criminal and tort law typically sanction only “wrongful conduct,” bad acts, and misfeasance. J. Goldberg, A. Sebok, & B. Zipursky, Tort Law: Responsibilities and Redress 31 (2004). Some level of blameworthiness is therefore ordinarily required. But, again, if aiding-and-abetting liability were taken too far, then ordinary merchants could become liable for any misuse of their goods and services, no matter how attenuated their relationship with the wrongdoer. And those who merely deliver mail or transmit emails could be liable for the tortious messages contained therein. See Restatement (Second) of Torts §876, Comment d, Illus. 9, p. 318 (1979) (cautioning against this result).

In order to be found to “aid and abet” a criminal act, one must have some definitive connection to the related criminal enterprise.11

To keep aiding-and-abetting liability grounded in culpable misconduct, criminal law thus requires “that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed’ ” before he could be held liable.

Consequently, in order for any action under JASTA to proceed, the litigant has to show some definitive connection between the alleged “sponsor” of terrorism and at least one specific terrorist act12.

To summarize the requirements of §2333(d)(2), the phrase “aids and abets, by knowingly providing substantial assistance,” points to the elements and factors articulated by Halberstam. But, those elements and factors should not be taken as inflexible codes; rather, they should be understood in light of the common law and applied as a framework designed to hold defendants liable when they consciously and culpably “participate[d] in” a tortious act in such a way as to help “make it succeed.” Nye & Nissen, 336 U. S., at 619 (internal quotation marks omitted). And the text requires that defendants have aided and abetted the act of international terrorism that injured the plaintiffs—though that requirement does not always demand a strict nexus between the alleged assistance and the terrorist act

Neither Gonzalez v Google nor Twitter v Taamneh established any such strict nexus13.

At bottom, then, the claim here rests less on affirmative misconduct and more on an alleged failure to stop ISIS from using these platforms. But, as noted above, both tort and criminal law have long been leery of imposing aiding-and-abetting liability for mere passive nonfeasance. To show that defendants’ failure to stop ISIS from using these platforms is somehow culpable with respect to the Reina attack, a strong showing of assistance and scienter would thus be required. Plaintiffs have not made that showing.

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Because neither case showed a definitive linkage between the social media sharing of ISIS-generated content and ISIS-generated acts of terrorism, even before a consideration of Section 230 is undertaken, both cases have already failed as liability under JASTA has not been established. With or without the liability protections of Section 230, neither Twitter nor Google could be held liable on the legal theories advanced in these cases, because in neither case had Google or Twitter been shown to have actually “aided and abetted” ISIS.

Yet this stance also hearkens to another legal doctrine that can be applied to notional speech in such cases—the Brandenburg14 test.

This was a point I had made when the cases first went before the Supreme Court for oral argument—neither case argued that the content in question incited imminent lawless action.

We should also note that the petitioners, while arguing that the content in question facilitated ISIS recruitment and thus the spread of terrorism, are not arguing the content in question went so far as to incite an imminent lawless action, which Brandenburg v Ohio established as the necessary threshold for transforming notionally objectionable speech into potentially criminal acts.

Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Brandenburg is not even mentioned within their writ of certiorari. If the content is not claimed to incite imminent lawless action, there is no foundation for arguing the content crosses over from Constitutionally protected speech into potentially tortious and actionable conduct.

Although Thomas argues the distinction in light of JASTA and 18 USC 2333(d)(2), the same premise still holds—as the content itself was only tangential to the acts of terror giving rise to the claims in both cases, there was no incitement to imminent lawless action, which again precludes any imputation of liability arising from the specific terrorist acts at issue to the noxious content which was shared on social media.

Without even the Brandenburg test at issue in either case, not only is speech not an issue, but neither can there be a claim for secondary liability.

Justice Ketanji Brown Jackson, in her concurring opinion in Twitter, suggests this is indeed the case15.

I join the opinion of the Court with the understanding that today’s decisions are narrow in important respects. In this case and its companion, Gonzalez v. Google, 598 U. S. ___ (2023) (per curiam), the Court has applied 18 U. S. C. §2333(d)(2) to two closely related complaints, filed by the same counsel. Both cases came to this Court at the motion-to-dismiss stage, with no factual record. And the Court’s view of the facts—including its characterizations of the social-media platforms and algorithms at issue—properly rests on the particular allegations in those complaints. Other cases presenting different allegations and different records may lead to different conclusions.

The Court also draws on general principles of tort and criminal law to inform its understanding of §2333(d)(2). General principles are not, however, universal. The common-law propositions this Court identifies in interpreting §2333(d)(2) do not necessarily translate to other contexts.

While both Thomas in delivering the opinion of the Court and Jackson in her concurrence specifically decline to speak to any aspect of Section 230, that declination very specifically leaves the door open to future consideration of the matter, presumably with a case better suited for the discussion.

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As I have stated before, Free Speech is a moral imperative. This is the beginning of all my reasonings on this topic.

For this reason my hope when these cases reached the Supreme Court was that the Court would correctly see that Section 230, far from being a defense of free speech and a bar to Internet censorship, is in fact nothing short of a license to proactively and intentionally censor any and all content, as it is an explicit indemnification for so doing.

Yet I am still hopeful that the logic of Thomas’ Twitter ruling, seconded by Jackson’s concurrence, points to an eventual rejection of Section 230, because Thomas’ basic assessment of the applicable law parallels the view I want to see prevail—that where an act of speech is not itself either a tortious or criminal act, nor is an incitement to any form of lawless action, no liability can possibly attach. Thomas rejects the application of secondary liability to both Google and Twitter, because in neither case did the litigants show that the noxious content in question was itself any manner of tortious or criminal act.

In neither case was a violation of the Brandenburg rule asserted. Similarly, in neither case was there an established connection between the noxious content and an identifiable terrorist act for which secondary liability could be imputed. In both logic chains, the required linkage between the noxious content and the relevant tortious or criminal act is simply not there.

As I have stated previously, the flaw of Section 230 is that it gives Big Tech legal immunity when it censors content. It provides no new incentive for social media platforms to refrain from catering to loud political minorities who want to see dissenting views silenced and eradicated.

For now, Big Tech’s immunity is left intact. Unfortunately, their censorship license will continue for at least a little while yet.

Fortunately, the likely foundations for a future successful challenge to Section 230 are left intact as well.

In the end, these cases are a victory for Big Tech, but not for Section 230.

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Thus far, I do not appear to be on the list of those some demand be silenced here. Will that change? Only time will tell.

Still, as my readers may recall, I have been silenced elsewhere. For the mortal sin of citing actual CDC data on COVID, I was summarily and permanently banned from LinkedIn.

The seemingly endless debate on Notes about censoring “moderating” brings that specter of censorship back front and center once again to my attention span. Since this debate will not go away, I believe that you, my readers, should know my full thoughts on this issue.

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My stance has always been simply this: Free Speech is a moral imperative.

As I wrote at the time of my banning from LinkedIn:

Free Speech allows us to have a Free Society.

Free Speech allows us to have Freedom.

Without Free Speech, none of us can ever hope to be free.

This I believe absolutely.

While it is easy to defend the rights of people to discuss matters of economics, or science, or even most schools of philosophy, how do we respond to the challenge of ideas we find loathsome and objectionable? How do we respond when confronted with ideas that are simply evil?

Ironically, the Notes threads on this topic are themselves a showcase for the solution. We respond to the challenge of objectionable ideas by rebutting with sounder ideas and better arguments. We respond to the challenge of evil ideas and evil words with hopefully virtuous ideas and virtuous words (each of us deciding for himself or herself what makes ideas and words “virtuous”).

Some will object to ideas and comments with ad hominem invective.

White men think there’s no such thing as hate speech because they aren’t the targets of it. And because white men engage in denialism and gaslight women and Black people.....

Others will respond with calls for bans and exclusion.

There's at least one other dude who's equally antisemtic and racist, using the N word. I'm a champion of free speech but I'm conflicted about sharing a platform with racists. I think Substack has to get a handle on this.

Still others call for community policing of “dangerous ideas.”

I don’t want the government censorship. But, it’s not true that the best ideas win in the free marketplace of ideas. Most people are not capable of doing their own research and coming to the correct conclusion. We need voluntary societies to protect people from dangerous ideas.

I disagree with each of these modes of response, but of this much I am certain: these commentators are firmly convinced that they are right to say these things. They believe, rightly or wrongly, that theirs is the virtuous position.

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Yet, as the discussions which surround each of these statements demonstrates conclusively, these ideas are themselves offensive to some. These “virtuous” ideas are themselves “evil” to some.

However, instead of striving to suppress these ideas, instead of striving to silence these voices, others (including myself) have chosen to engage with these voices, matching thought for thought, idea for idea, word for word. We perhaps have not “won” the debate—for the voices of censorship have not yet quit this latest rhetorical field of battle—but we have at least held them at bay for now.

This is but a small sample of what is possible when we recognize Free Speech as a moral imperative.

This is what becomes impossible when we deny that Free Speech is moral imperative.

This was what was lost when YouTube deplatformed freethinker and philosopher Stefan Molyneaux.

This was what was lost when Twitter banned the account of alternative media site ZeroHedge.

This was what was lost when Facebook and Twitter deplatformed virologist and SARS-CoV-2 researcher Dr. Li-Meng Yan.

While those who call for censorship and the policing of thought will invariably trundle out undeniable evils such as Nazism, arguing that texts such as Mein Kampf are clear examples of ideas which must be suppressed, what they ignore are these immediate examples of censorship, which have happened and which are happening.

What they forget are the people who are demonized and “cancelled” simply for presenting ideas and narratives not approved by those who arrogate to themselves a mantle of authority.

What they deny is that, even if there were moral justification for suppressing Mein Kampf (there isn’t), such suppression could never stop with just that one text. Once someone claims the authority to decide which ideas, which words, which texts are “dangerous”, they must forever after judge all ideas, all words, all texts, arrogating to themselves the power to decide which are “dangerous” and which are not. Power, once claimed, can never easily be put aside. Human history teaches us that much over and over.

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There is something else the would-be censors do not say—and quite possibly would deny if challenged: They are afraid. Yet it is clear from their own words that they are afraid of the ideas they would see suppressed.

Do you know how words work? I’m engaged in an argument on Notes where I’m being told I should educate myself on the rise of Nazism and that the Nazis introduced censorship in reply to my contestation that free speech allowed Mein Kampf to be published which was the genesis of the Holocaust. I’m endlessly being told that the Nazis used censorship. How does that disprove that Mein Kampf was an expression of free speech. Or that it led to the Holocaust (with preludes in German academia and literature). The opponents of Nazism used their free speech to oppose Hitler’s rise. They failed. Free speech is not a panacea to fascism. In fact it is necessary for its rise. The fact that fascists then limit free speech means nothing here except that they recognise that ideas good and evil are dangerous. PS stop telling me free speech is good when Russian genocide in Ukraine is justified in the West under the guise of free speech.

Fearful of “fascists”, they present censorship as a “pre-emptive strike”, arguing that the only way to hold the authoritarians among us at bay is to use against them the main tool of authoritarians throughout history: censorship. In their fear, free speech becomes the authoritarian’s pathway to power. In their fear, the only way they see to block the authoritarian’s path is to go down it first.

Implicit in all the arguments in favor of censorship is this admission that censorship is what authoritarians do. Thus, the argument for censorship is invariably the argument for authoritarianism. The argument for censorship is the claim that the “enlightened” few should exert power and dominion over an unenlightened humanity—and that somehow this will prevent the “evil” few from exerting power and dominion over a virtuous humanity.

However, as Shakespeare observed in Macbeth1, things are never that simple.

But in these cases We still have judgment here; that we but teach
Bloody instructions, which, being taught, return
To plague the inventor: this even-handed justice
Commends the ingredients of our poison'd chalice
To our own lips.

As censorship is the tool of authoritarians, to embrace censorship is to become authoritarian. The moment one silences another, in that moment one “but teaches Bloody instructions”—instructions which will most assuredly “return to plague the inventor”. One cannot use censorship as a means to defeating fascism, for in the act of censorship one becomes fascist—one becomes the very thing nominally being opposed.

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Actual opposition to authoritarianism is libertarianism. The alternative to allowing a select few power and dominion over everyone else is to reject notions of power and dominion for anyone over anybody.

As censorship is the weapon of the authoritarian, Free Speech is thus the shield of the libertarian. Free Speech is what preserves our freedom of thought, without which we can have no true freedom at all.

Thus the core question in the eternal debate over censorship vs Free Speech is ever and always this: Will we be authoritarians or libertarians?

Will we seek freedom for all, or power for a few and oppression for the rest?

For myself, I choose to be a libertarian. I choose to seek freedom for all. My one desire is simply this: to live and die as a free man.

To that end, I choose Free Speech over censorship.

Which do you choose?

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The Supreme Court agreed on Monday to decide whether social media platforms may be sued despite a law that shields the companies from legal responsibility for what users post on their sites. The case, brought by the family of a woman killed in a terrorist attack, argues that YouTube’s algorithm recommended videos inciting violence.

The case, Gonzalez v. Google, No. 21-1333, concerns Section 230 of the Communications Decency Act, a 1996 law intended to nurture what was then a strange and nascent thing called the internet. Written in the era of online message boards, the law said that online companies are not liable for transmitting materials supplied by others.

The case represents the first time the Supreme Court has agreed to weigh in on a statute many consider foundational to the growth of the Internet as we know it today, and helped power the rise of social media giants such as Google, Facebook, and Twitter.

Enacted when Facebook founder Mark Zuckerberg was just 11 years old and Google’s creation still two years off, Section 230 is seen as a fundamental law of the internet and considered inviolable by its staunch defenders.

Section 230 was part of the Communication Decency Act, an anti-pornography law signed in 1996, that helped set the rules of the road for the internet, which was still in its infancy as an online playground for all.

The idea was to protect the then embryonic internet sector from cascading lawsuits and to allow it to flourish, while encouraging tech companies to moderate their content.

As the first substantial review of Section 230 by the Court, the case has the potential to substantially redefine both the scope of free speech protections for online content as well as the degree to which Big Tech censorship is permissible. For that reason alone, this is a case that is of immediate concern to everybody.

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To understand the case being put before the Court, we should begin with the text of the statute itself, Section 230 of Title 47 of the US Code.

The particular section the Court is being asked to review is subsection (c)(1)1:

(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

No 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.

This distinction forms an important liability shield for internet service providers and social media platforms, as it precludes them from ever being held liable for the social media postings made by users of those platforms. While a social media user or content provider can be found liable for defamation or other objectionable speech, the social media platform itself is beyond the reach of such liability by this statute2.

Section 230(c)(1) of the CDA states, “No 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.” Section 230(f) defines “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server;” and defines “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information....” Thus, for instance, while one could hold a YouTube video uploader (an information content provider) liable for defamation, one could not hold YouTube (an interactive computer service) liable as a “publisher or speaker” of that video, because, under CDA § 230(c)(1) the video is “information provided by another information content provider”—i.e. the video uploader.

This principle seems simple enough, and arguably is common sense. Neither Google nor Facebook nor Twitter have any direct connection to any user or provider of content on their respective platforms, and the Supreme Court has already ruled, in Packingham v. North Carolina3 that such platforms, aka “cyberspace”, form a sort of “digital commons” for all to be able to access freely.

A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. See Ward v. Rock Against Racism, 491 U. S. 781, 796 (1989) . Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.

While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997) , and social media in particular. Seven in ten American adults use at least one Internet social networking service. Brief for Electronic Frontier Foundation et al. as Amici Curiae 5–6. One of the most popular of these sites is Facebook, the site used by petitioner leading to his conviction in this case. According to sources cited to the Court in this case, Facebook has 1.79 billion active users. Id., at 6. This is about three times the population of North America.

Distinguishing platforms from publishers is, in this doctrine, nothing more than statutory recognition of the value of this technological reality4.

Section 230 embodies that principle that we should all be responsible for our own actions and statements online, but generally not those of others. The law prevents most civil suits against users or services that are based on what others say.

Congress passed this bipartisan legislation because it recognized that promoting more user speech online outweighed potential harms. When harmful speech takes place, it’s the speaker that should be held responsible, not the service that hosts the speech.

Section 230’s protections are not absolute. It does not protect companies that violate federal criminal law. It does not protect companies that create illegal or harmful content. Nor does Section 230 protect companies from intellectual property claims.

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There is, however, a wrinkle to the case: Google/YouTube uses various algorithms to “recommend”, or highlight certain content based upon a number of parameters of a social media content consumer (as does Facebook and Twitter). These recommendations form the basis of the litigation against Google5, which is being sued by the family of Nohemi Gonzalez, a college student murdered during an ISIS terror attack in Paris in November, 2015.

The case was brought by the family of Nohemi Gonzalez, a 23-year-old college student who was killed in a restaurant in Paris during the November 2015 terrorist attacks, which also targeted the Bataclan concert hall. The family’s lawyers argued that YouTube, a subsidiary of Google, had used algorithms to push Islamic State videos to interested viewers, using the information that the company had collected about them.

Google’s algorithms are at the core of the case being brought before the Court, as laid out in the plaintiffs petition for writ of certiorari.

In the decades since the enactment of section 230, the types of services being provided on the internet have changed dramatically. The issue in this case, as
in Force and Dyroff, arose out of one of those fundamental changes. Today the income of many large interactive computer services is based on advertising, not
on the subscriptions that in years past were the basis of the income firms such as Prodigy and CompuServe. Internet firms that rely on advertising have a compelling interest in increasing the amount of time that individual users spend at their websites. The longer a user is on a website, the more advertising the user will be exposed to; that in turn will increase the revenue of the website operator.

That financial structure has given rise to the now widespread practice of recommending (for want of any agreed upon better term) material to website users, in the hope of inducing them to look at yet more material and thus to remain ever longer on that website. Many of those recommendations are based on algorithms, which review all the information an interactive service provider has about each particular user, and selects for recommendation the material in which that user is most likely to be interested. “[A]lgorithms [are] devised by these companies to keep eyes focused on their websites.... ‘[T]hey have been designed to keep you online’....” App. 97a n.3 (Gould, J., dissenting) (quoting Anne Applebaum, Twilight of Democracy—The Seductive Lure of Authoritarianism (1st ed. 2020)). Algorithm-based recommendations have been enormously successful, and thus lucrative. As Judge Katzmann noted, one analysis concluded that 70% of the time that users spend on YouTube is the result of YouTube’s algorithm-based recommendations. 934 F.3d at 87.

The complaint alleged that that assistance and aid took several forms. Plaintiffs asserted that Google had knowingly permitted ISIS to post on YouTube hundreds of radicalizing videos inciting violence and recruiting potential supporters to join the ISIS forces then terrorizing a large area of the Middle East, and to conduct terrorist attacks in their home countries. Additionally, and central to the issue in this appeal, the complaint alleged that Google affirmatively “recommended ISIS videos to users.” Third Amended Complaint, ¶ 535. Those recommendations were one of the services that Google provided to ISIS. Google selected the users to whom it would recommend ISIS videos based on what Google knew about each of the millions of YouTube viewers, targeting users whose characteristics indicated that they would be interested in ISIS videos. Id., ¶¶ 535, 549, 550. The selection of the users to whom ISIS videos were recommended was determined by computer algorithms created and implemented Google. Because of those recommendations,
users “[we]re able to locate other videos and accounts related to ISIS even if they did not know the correct identifier or if the original YouTube account had been
replaced....” Id., ¶ 549.

The short version: the plaintiffs argue that Google did (and does) more than just provide a platform for content. In their argument, Google takes concrete steps that help provide the audience as well, and thus should not receive the protection imputed by Secton 230(c)(1).

Unsurprisingly, Google rejects this interpretation both of the law and of the function of their algorithms.

The question presented asks whether section 230 applies to interactive computer service providers’ “targeted recommendations” of third-party content. Pet. i. As petitioners (at 5) acknowledge, the circuits are not divided on that issue. This Court recently denied petitions for certiorari by the same petitioners’ counsel in the two other cases to raise this issue. Force, 140 S. Ct. 2761; Dyroff, 140 S. Ct. 2761. And this Court has denied certiorari in at least 20 cases, from most circuits, raising
broader section 230 issues. The Court should deny this petition as well. Nothing
has strengthened the case for certiorari since this Court last denied review. Indeed, this case would be a worse vehicle to address section 230 than those two previous
petitions. The only development petitioners (at 6) identify is the decision below, which reached the same result as the earlier Ninth Circuit decision in Dyroff, 934 F.3d 1093,and the Second Circuit decision in Force, 934 F.3d 53. The count thus remains 2–0.

Further, the decision below is correct. Section 230 bars claims that treat websites as publishers of third-party content. Publishers’ central function is curating and displaying content of interest to users. Petitioners’ contrary reading contravenes section 230’s text, lacks a limiting principle, and risks gutting this important statute.

Fundamentally, Google’s position is that its recommendation algorithms do not amount to content curation, and thus Google is still not a publisher but merely an interactive computer service as defined within Section 230(f)(2):

The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

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This is not the first time social media algorithms have come under legal scrutiny. In 2021, Congress contemplated several bills which would limit or even eliminate much of the legal protections afforded by Section 230, based on the nature and function of a platform’s algorithms.

Lawmakers have spent years investigating how hate speech, misinformation and bullying on social media sites can lead to real-world harm. Increasingly, they have pointed a finger at the algorithms powering sites like Facebook and Twitter, the software that decides what content users will see and when they see it.

Some lawmakers from both parties argue that when social media sites boost the performance of hateful or violent posts, the sites become accomplices. And they have proposed bills to strip the companies of a legal shield that allows them to fend off lawsuits over most content posted by their users, in cases when the platform amplified a harmful post’s reach.

However, even within the proposed bits of legislation from 2021, achieving a coherent and legally supportable understanding of social media and search algorithms proved to be a complex undertaking.

Algorithms are everywhere. At its most basic, an algorithm is a set of instructions telling a computer how to do something. If a platform could be sued anytime an algorithm did anything to a post, products that lawmakers aren’t trying to regulate might be ensnared.

Some of the proposed laws define the behavior they want to regulate in general terms. A bill sponsored by Senator Amy Klobuchar, Democrat of Minnesota, would expose a platform to lawsuits if it “promotes” the reach of public health misinformation.

Ms. Klobuchar’s bill on health misinformation would give platforms a pass if their algorithm promoted content in a “neutral” way. That could mean, for example, that a platform that ranked posts in chronological order wouldn’t have to worry about the law.

Other legislation is more specific. A bill from Representatives Anna G. Eshoo of California and Tom Malinowski of New Jersey, both Democrats, defines dangerous amplification as doing anything to “rank, order, promote, recommend, amplify or similarly alter the delivery or display of information.”

Free speech advocacy groups such as the Electronic Frontier Foundation filed amicus curiae briefs supporting Google’s position in the case. The EFF in particular argues in its amicus filing that a platform’s algorithms are little more than the cyberspace equivalent of a print newspaper’s discretionary decision on article placement, use of fonts, et cetera, decisions which have long been considered protected under the First Amendment.

In Gonzalez v. Google, the petitioning plaintiffs make a radical argument about Section 230. They have asked the Supreme Court to rule that Section 230 doesn’t protect recommendations we get online, or how certain content gets arranged and displayed. According to the plaintiffs, U.S. law allows website and app owners to be sued if they make the wrong recommendation. 

In our brief, EFF explains that online recommendations and editorial arrangements are the digital version of what print newspapers have done for centuries: direct readers’ attention to whatever might be most interesting to them. Newspapers do this with article placement, font size, and use of photographs. Deciding where to direct readers is part of editorial discretion, which has long been protected under the First Amendment. 

On the other side are arguments advanced by groups such as the National Police Foundation, which has a much darker view of social media and thus argues in its amicus curiae brief in support of the petitioners for greater content regulation and less freedom.

Social media are known means to promote and enable radicalization and violence (Part I), and police are suffering an epidemic of social-media fueled attacks
(Part II). Yet this and similar cases were rejected on § 230 grounds and for not establishing an “act of international terrorism” and proximate cause, all needing
correction (Part III). Section 230(c)(1) should be construed to not protect social-media recommendations (III.A) and “act of international terrorism” and proxi-
mate-cause standards should be clarified and adjusted in light of the harm posed by terrorist and radical groups (III.B-C), all of which will help damp anti-LEO
attitudes and attacks.

Suffice it to say, one or the other of these views will likely prevail when the Court issues its final ruling later this year.

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Yet there is a perverse irony to this case: with the focus entirely on Section 230(c)(1), it completely overlooks the far more noxious subsequent passage (c)(2)6, which explicitly gives social media platforms complete legal immunity for actively censoring and suppressing content.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

The omission is glaring on both sides. Not only do the petitioners not argue that Section 230(c)(2) creates an affirmative duty to restrict various content7—which duty Google would notionally have failed to perform—but the argument of the EFF in its amicus brief is predicated on the presumption that, should the petitioners prevail before the Court, the end result will be a “censored Internet”:

If Courts Narrow Section 230, We’ll See A Censored Internet 

If the plaintiffs’ arguments are accepted, and Section 230 is narrowed, the internet as we know it could change dramatically. 

First, online platforms would engage in severe censorship. As of April 2022, there were more than 5 billion people online, including 4.7 billion using social media platforms. Last year, YouTube users uploaded 500 hours of video each minute. Requiring pre-publication human review is not feasible for platforms of even moderate size. Automated tools, meanwhile, often result in censorship of legal and valuable content created by journalists, human rights activists, and artists. Many smaller platforms, unable to even access these flawed automated tools, would shut down. 

The flaw in the EFF’s argument is simply this: we already have a censored Internet, as I can personally attest, having been banned from LinkedIn for posting CDC statistics regarding the COVID-19 pandemic.

All Facts Matter

Speech Or Silence: I Have Been Silenced

Free Speech is a moral imperative. I have said this many times before, in defense of commentators such as Stefan Molyneaux as well as more noxious persons such as Louis Farrakhan. I will keep on saying it in every forum I can for as long as I can. The animating principle behind this newsletter and all my online commentary has always been to further frank…

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4 years ago · 1 like · Peter Nayland Kust

Nor am I alone in this, as Internet commentators such as Steve Kirsch can attest.

Steve Kirsch's newsletter

LinkedIn has banned me for life for making 3 truthful comments

LinkedIn is the sole judge, jury, and executioner of what constitutes “misleading or inaccurate” information and whether you violate their user agreement. They can terminate you at any time, for any reason. You have no recourse. Because I made 3 truthful, accurate statements that…

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4 years ago · 303 likes · 474 comments · Steve Kirsch

And long before “health misinformation” was the boogeyman du jour, notable online personalities such as Stefan Molyneaux were being deplatformed for having the “wrong” ideas or saying the “wrong” things.

All Facts Matter

Speech Or Silence: Free Speech Is A Moral Imperative

I have said it before and I will say it again: Free Speech is a moral imperative. I will keep saying it, because it needs to be said. It needs to be heard. So long as the Big Tech social media platforms believe they can silence and suppress dissenting voices with impunity, it needs to be heard…

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6 years ago · 1 like · Peter Nayland Kust

The reality of a censored Internet was conclusively established when Elon Musk released the “Twitter files”, and which Senator Ted Cruz has announced will be the basis of hearings before the Senate Commerce Committee into Big Tech censorship.

Cruz said, “[I]n my role as Ranking Member of the Commerce Committee, today, I launched a full investigation into big tech censorship, where we are going to take the Twitter files, we’re going to take what Elon Musk has made public and use that as a roadmap to go after Facebook, to go after Google, to go after YouTube, to go after TikTok, to go after all of big tech that is trying to silence conservatives. And we are going to bring accountability, we’re going to bring transparency, we’re going to shine a light and expose their collusion with Democrats and the deep state to try to silence conservatives.”

If the argument for preserving the protections of Section 230(c)(1) is to prevent a censored Internet, those protections have already failed us at every turn.

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My argument has always been rhetorically simple: Free Speech is a moral imperative. Our duty to ourselves and to our fellow man is not to silence any speech, but to meet objectionable speech with alternative speech, to challenge bad ideas and toxic rhetoric with good ideas and positive rhetoric.

Accordingly, I reject even the existence of concepts such as “hate speech” and “misinformation”. These labels ultimately are merely a dodge to avoid engaging in debate with those whom we personally dislike.

Even the petitioners to this case acknowledge that Google enjoys Section 230 immunity for allowing ISIS-related content on its YouTube platform, yet they paradoxically want to argue that Google should not receive Section 230 protection for algorithmically recommending this same allowed content. This argument is simply irrational. Speech cannot be protected in one sense and unprotected in another; it is either protected or it is not protected—and under the First Amendment, all speech is protected.

We should also note that the petitioners, while arguing that the content in question facilitated ISIS recruitment and thus the spread of terrorism, are not arguing the content in question went so far as to incite an imminent lawless action, which Brandenburg v Ohio8 established as the necessary threshold for transforming notionally objectionable speech into potentially criminal acts.

Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Brandenburg is not even mentioned within their writ of certiorari. If the content is not claimed to incite imminent lawless action, there is no foundation for arguing the content crosses over from Constitutionally protected speech into potentially tortious and actionable conduct.

If the content in question was not so objectionable as to raise legitimate questions about its potential to incite imminent lawless action, it is difficult to see how even a traditional publisher could be held to account for making that content available, let alone a social media platform or interactive computer service.

However, we should not overlook the reality that the functional effect of Section 230 as a whole is not to facilitate free speech on the Internet, but to inhibit and restrict it. When (c)(1) and (c)(2) are taken together—and the plain construction of the statute demands that they be taken together—they are nothing less than an unrestricted license for Big Tech to arbitrarily censor however they will. And censor they have, repeatedly.

Regardless of the stated legislative intent of Section 230, that has been its practical consequence. Despite all assertions to the contrary, Section 230 is at its core the one thing the First Amendment explicitly disallows: a law abridging the freedom of speech.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

By immunizing social media platforms from any liability for suppressing ostensibly objectionable speech (which the title of subsection (c) explicitly claims as its purpose), Congress effectively weaponized social media platforms to become Orwellian enforcers of not merely “correct” speech but also “correct” thought—which Big Tech gets to arbitrarily and unilaterally define. We have only to consider the innumerable examples of Big Tech censorship (which greatly exceed the capacity of a single Substack article to document), as well as the documented collusion on display within the Twitter Files between Big Tech and elements of the Federal Government to see that this is indeed the case.

Thus the greatest irony of all in this case is what the Constitutionally correct decision should be: The reason Google should not be held liable for the ISIS content is that Section 230 is itself unconstitutional. The ISIS content itself was and is speech, and thus should automatically receive the full gamut of First Amendment protections. As the content itself is protected by the First Amendment, so too must be any and all recommendations, algorithms, or any other form of content curation. No liability can rationally attach when the speech itself is categorically protected by the First Amendment.

At a minimum, (c)(2) is clearly unconstitutional and needs to be excised from US law—at which point the utility of (c)(1) becomes unclear.

The Internet would indeed benefit from a law immunizing social media platforms from any claims of legal liability arising from user-posted content, while debarring those same platforms from censoring and suppressing content they arbitrarily deem “objectionable”. Unfortunately, Section 230, as currently written, is not that law.

Tip Jar On Ko-Fi

Speaking at an event against “hate-fueled violence” (as opposed to the government’s preferred economic motives for violence, presumably), President Asterisk challenged Congress to strike a blow for Freedom Of Speech and end Big Tech Social Media’s censorship license known as Section 230 Of the Communications Decency Act.

“I’m calling on Congress to get rid of special immunity for social media companies and impose much stronger transparency requirements on all of them,” Biden said, alluding to Section 230.

Publishers can be held liable for any content they post, while social media platforms are protected by Section 230 of the Communications Decency Act, a federal law that shields online companies from liability related to content posted by users. In particular, part of the law states that “no 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.”

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Section 230 is unquestionably an unconstitutional abridgement of the freedom of speech, and it should never have been passed into law nor given credence by the courts—one of many times the courts have gotten the law horribly wrong.

All Facts Matter

Shouting Fire In A Crowded Theater: An American Right

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Oliver Wendell Holmes…

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7 years ago · Peter Nayland Kust

In reality, of course, Dementia Joe does not give one tinker’s damn about Free Speech, and his call for elimination of Section 230 is not a call for the elimination of Social Media Censorship but rather for even stricter and more burdensome forms of it. He even said as much:

The Democrat said he wants Congress to “hold social media companies accountable for spreading hate.” The remarks received a standing ovation from attendees.

This is the same person who made vicious, hateful, and arguably defamatory attacks against the “unvaccinated” in demanding OSHA enact an illegal and unconstitutional (and unncessary) COVID-19 inoculation mandate last fall.

All Facts Matter

The Case Against The OSHA Vaccine Mandate

While the world has yet to see the emergency rule proposed by OSHA mandating COVID vaccinations or weekly testing in all companies with more than 100 workers, we should pause to remember that many—perhaps even most—Americans are at the very least troubled by the vaccine mandate. Being told by an impersonal government that we must accept an injection of …

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5 years ago · Peter Nayland Kust

This is the same Biden Regime whose execrable and foundationally evil “Winter of Death” rhetoric I called out last December.

All Facts Matter

On What Planet Does Jeff Zients Spend Most Of His Time?

I titled this newsletter “All Facts Matter” for a simple reason: to highlight the importance of facts, data, and evidence in rational discussion. I make my interpretations of the available facts and data, and will happily engage with all who disagree with me, but always at the core of any discussion are the facts and the data…

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4 years ago · 2 likes · 2 comments · Peter Nayland Kust

It was opposition to that same “Winter of Death” rhetoric that resulted in my permanent suspension from LinkedIn.

All Facts Matter

Whatever Planet Jeff Zients Is On, LinkedIn Is A Satellite In Orbit

Lather, rinse, repeat. That fairly sums up my latest LinkedIn suspension (still waiting to find out if this one is permanent). It would not warrant further commentary, but the stated rationale for my suspension does demand some discussion. The Narrative Must Never Be Questioned, Not Even By Facts And Evidence…

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4 years ago · 2 likes · 4 comments · Peter Nayland Kust

Thus while I enthusiastically support the idea of erasing from the US Code all notion of giving Big Tech Social Media (or anyone else) license to censor and suppress speech, I do not for one moment believe that the incumbent Regime in the White House intends anything by this but even greater censorship, an even heavier hand of suppression, an even more despotic regime of oppression.

The Biden Regime is no friend of Free Speech, not even when it accidentally proposes something that would by itself benefit Free Speech.

Tip Jar On Ko-Fi

“We do not consider RT to be fit and proper to hold a UK license and cannot be satisfied that it can be a responsible broadcaster,” Ofcom said Friday in a statement on Twitter.

The antidote to “poisonous propaganda” never censorship but a free discussion of the facts. Free Speech and a Free Press demand that all voices be allowed to speak, that all perspectives be allowed to at least make their case. Free Speech must be enjoyed by everyone or it can be enjoyed by no one.

It would not warrant further commentary, but the stated rationale for my suspension does demand some discussion.

The Narrative Must Never Be Questioned, Not Even By Facts And Evidence

I was suspended for daring to challenge the official “winter of death” narrative. Seriously.

Yes, stating the empirical facts about the severity of COVID-19, supported with documented sources, is “misinformation”. Disagreeing with the official “winter of death” narrative for the non-inoculated (i.e., the “unvaccinated”) warrants cancellation.

Was the inclusion of the link to my newsletter article criticizing Jeff Zients for pushing this narrative the deciding factor in this latest suspension?

That I do not know—LinkedIn rarely says anything more substantive than “it's misinformation” with regards to its acts of censorship. Even so, the irony of that data-driven jeremiad possibly being the cause of this latest suspension amply warrants this article's headline.

What I do know is that the article itself provides links to verify every claim of fact made. The claims are the conclusions derived from reviewing the data.

There is always a possibility the data is wrong. Even if so, however, by far the more reasonable response is to challenge the data in reasoned debate. Attempting to cancel a person for presenting an uncomfortable set of facts is not merely unethical, but insane. Canceling people will not change the facts.

If my conclusions are wrong, if my facts are in error, then I invite anyone and everyone to point out how I am wrong in the comments section of my newsletter. Put all the data on the table and let people form their own conclusions.

Not An Isolated Case

I am the smallest of fish in the independent media pond. I have nowhere near the readership or following of Alex Berenson or Steve Kirsch. Yet what has happened to me on LinkedIn has also happened to them—Alex Berenson had his Twitter account suspended, and Steve Kirsch has been booted from LinkedIn. Both writers have stated their cases within their own newsletters, and anyone interested in how Big Tech came gunning for them should read their own words on the matter.

Similarly, the authors of the Great Barrington Declaration have been targeted for “take down”, by no less than Francis Collins and Anthony Fauci—respectively, the heads of NIH and NIAID—for championing science and open debate. We know this from their own email correspondence.

What historian Phil Magness has discovered, with newly unearthed emails, comes not as a shock to any of us but it is satisfying to see the confirmation of what we suspected. It seemed at the time that the effort to attack and destroy both the GBD and its authors was coordinated from the top. Here at last is the proof that our intuition was not crazy.

While it is rank speculation to think that I have been targeted in the exact same fashion, my cancellation on LinkedIn follows the same trajectory as Alex Berenson, Steve Kirsch, or the authors of the Great Barrington Declaration: someone is triggered by a particular comment or post and reports it to LinkedIn thought police, who then take action against “misinformation”. The factual content of the message is irrelevant; all that matters is the “official narrative” is challenged—which is the practical, real-world definition of “misinformation”.

This is the state of public discourse in the pandemic era. Only orthodox views are tolerable, only support for the “official” narrative is allowed. My LinkedIn suspensions, Steve Kirsch’ LinkedIn suspension, Alex Berenson's suspension from Twitter, the attacks on the authors of the Great Barrington Declaration are all irrefutable proof of this.

To the “powers that be”, facts are irrelevant, and narrative is everything. Narrative is power. To question this is to invite cancellation.

All Facts Really Do Matter

Yet the facts are as they are. Censorship may silence dissenting voices, but it is powerless to alter the tiniest data point informing that dissent. Silencing dissident voices has never, in all of human history, succeeded in suppressing the truths uttered by those voices.

Canceling my LinkedIn account for pointing out the facts of COVID-19 severity will not make the disease either more or less virulent.

Censorship ultimately is simply silly. The best decisions are always the ones informed by the broadest array of facts. Suppressing part of those facts merely retards good decision-making. All facts really do matter.

LinkedIn might choose today to orbit whatever planet Jeff Zients and the rest of the medical fascists in Washington occupy, but it will not escape the consequences of that choice.