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In the wake of Payton S. Gendron’s May 14 racist slaughter at a Tops Friendly Market in a predominately Black neighborhood of Buffalo, New York, killing 10 people, all of whom where Black, and injuring three others, public officials and advocates for racial justice are struggling to find answers to stop the endless series of racially-motivated gun violence targeting Blacks, Jews, Asians, and other minorities across the United States.

There’s plenty of blame to go around. In June 2021, Gendron had been investigated by police in Broome County, New York for threatening other students at his high school. Asked about his plans after the school year, he responded, "I want to murder and commit suicide." He was referred to a hospital for mental health evaluation and counseling but he told police that he had been joking and was released after a day and a half. He was not charged in connection with the incident; investigators said he had not made a specific enough threat to warrant further action. The New York State Police did not seek an order from a state court to remove guns from Gendron's possession.

Subsequently Gendron cleared routine background checks while purchasing a shotgun at a gun store in Pennsylvania, which apparently did not reveal the 2021 investigation or his threatening statements. According to the store owner, Gendron told them that he wanted the gun for target practice and that was that. Before the shooting, Gendron wrote that he had purchased the rifle and illegally modified it to accept magazines capable of holding up to thirty rounds, which are illegal in New York state, where the limit is ten (only ten!) rounds.

About 64.9 percent of the 8,052 reported hate crimes in 2020 were based on race, ethnicity, or ancestry, according to the FBI. Gun sales have tripled in the last thirty years, arming America with 400 million firearms - half of all privately owned guns in the world. Renewed calls for stricter gun controls and the banning of assault weapons demand immediate attention in Congress and state legislatures. Police and state officials need to more vigilantly enforce existing background checks and “red flag” laws to keep guns out of the hands of dangerous individuals. Any politician who blocks gun safety, voting rights, and racial justice legislation - and instead inflames and promotes racism and white supremacy - should be replaced at the polls with leaders who will energetically pursue all of those goals until they are achieved. And civic, business and religious organizations, schools and universities, and prominent Americans in all walks of life must not only consistently condemn racial and ethnic violence, but should teach the history of white nationalism and racism in the United States and implement community-based opportunities and life experiences that bring together people of diverse backgrounds to learn how to live - to live - together.

Unfortunately, in their well-meaning attempt to eliminate racial violence, many elected officials and others think the solution is to enact new laws at the federal and state level to ban “hate speech” and “racist speech” from Twitch, Twitter, Facebook, Discord, Instagram, and other social media platforms. In times of deadly crisis, people are quick to blame objectionable speech that traffics in hateful racist and bigoted ideas and spreads false and derogatory stereotypes of racial inferiority. But history teaches us that you cannot eliminate hateful ideas through censorship or by banning books, newspapers, movies, or today, social media. We know this from the cruel yet failed efforts of dictatorships, totalitarian regimes, and authoritarian organizations. The Inquisition, Nazi book burning, and the Gulag killed and tortured millions, but they did not eliminate heresy, Judaism, or the struggle for freedom and democracy. Censorship is a lazy and superficial effort that may provide the short-term appearance of addressing the problem of racism, sexism, hatred, and bigotry, but you can’t kill ideas. They will just spread elsewhere, turning up in other places and other forms.

Instead of driving hateful ideas underground to fester and gain new adherents, we need to expose, confront, and refute them. And we need to do it over and over, in every generation. Today, everyone reading this may believe that hateful ideas such a racial inferiority or Holocaust denial are no longer debatable and therefore are not discussed or written about. But every year new students arrive at school carrying myths and stereotypes they have learned at home, from friends, in school, in church, from popular entertainment, and, yes, on social media. Every civic institution and every person in authority needs to be equipped with the tools of persuasion, advocacy, and compassion to teach critical thinking. It was commonplace years ago to warn people “Don’t believe everything you read in the paper.” We need to make it commonplace for people not to believe everything they read on social media.

Gendron announced his plans in plain sight. The warning signs were everywhere. He is reported to have written a 180-page manifesto posted on Google Docs on the evening of May 12, two days before the attack. He describes himself as an eco-fascist, a white supremacist, national socialist, ethno-nationalist, and an anti-Semite. The manifesto primarily promotes the white nationalist far-right "Great Replacement" conspiracy theory attributed to French writer Renaud Camus, which claims that whites are being subject by elites to genocide through immigration and decreasing white birth rates. Further, the manifesto holds that Jews and the elites are responsible for non-white immigration, that black people disproportionately kill white people, and that non-whites would overwhelm and wipe out the white race. Gendron says he supports “those that wish for a future for white children and the existence of our people.” He argues there is “white genocide” taking place in America and proudly brags of his racist and anti-Semitic views. He also expresses support for far-right mass shooters Dylann Roof, Anders Behring Breivik, and Brenton Tarrant. Up to 57 percent of the document is plagiarized from other sources.

According to the manifesto, planning for the attack commenced in January 2022, and Buffalo was targeted because it was the city with the most Black residents that was closest to Gendron’s home. He then selected the zip code area within Buffalo with the highest percentage of Black residents. His writing also includes extensive details about preparations made for the shooting, along with a plan to travel to a majority-black neighborhood in Buffalo, after the supermarket attack, to conduct further attacks. The attack was "intended to terrorize all nonwhite, non-Christian people and get them to leave the country".

Gendron is also reported to have had an account on the chat platform Discord, with the same username as the Twitch user who livestreamed the attack. Thousands of chat logs were retrieved from the account's postings, which were written in the form of an online diary and range from November 2021 to May 13, 2022. The logs included photos of Gendron and a to-do list of items in preparation for the attack. The chat logs indicated the attack was originally planned for March 15, on the anniversary of the Christchurch mosque shootings. They contained indications from as early as November 2021 that he planned to livestream a mass shooting targeting black people. He claimed authorship of a post on 4chan from November 9, 2021, that said, "a brenton tarrant event [sic] will happen again soon". The online diary also had sketches of the layout inside of the Tops supermarket. The diary mentioned visits to the supermarket on March 8. During these visits, he noted being challenged by the security guard, calling it a close call. He also noted the numbers of black people and white people in the supermarket during his visits. He also considered attacking synagogues, but decided against it because March 15 was not on a Saturday (the Jewish sabbath).

Gendron described himself as socially isolated. He said, "I would like to say I had quite a normal childhood (<18) but that is not the case". He also said, "It's not that I actually dislike other people, it's just that they make me feel so uncomfortable I've probably spent actual years of my life just being online. And to be honest I regret it. I didn't go to friend's houses often or go to any parties or whatever. Every day after school I would just go home and play games and watch youtube, mostly by my self [sic]." In another entry he added, "If I could go back maybe I'd tell myself to get the fuck off 4chan ... and get an actual life". At one point in the chat logs, the author describes killing and mutilating a cat.

In a post from December 9, 2021, he described staying in the emergency room of a hospital for 20 hours on May 28, 2021, as a result of alluding to his stated intention to commit murder–suicide in an online assignment for his economics class. He described the hospital stay as a very negative experience that encouraged him to take action. About 30 minutes before the shooting began, invitations to the chatroom that hosted the online diary logs were sent to a small group of other Discord users. At least fifteen other users joined the chatroom after that point, who would have been able to view the chat logs. According to a Discord spokesperson, they found no indication that any other users were aware of the diary before that time. He also sent links to the Twitch livestream that would show the attack.

In short, his very ability to telegraph his plans openly on social media gave law enforcement the opportunity to track his movements and, armed with probable cause, to investigate, detain and question him, and arrest and prosecute him under the law. They failed to act.

Jean Renaud Gabriel Camus, identified by name in Gendron’s manifesto, is a French novelist, conspiracy theorist and white nationalist writer. He is credited with creating the "Great Replacement", a far-right conspiracy theory that claims that a “global elite” is colluding against the white population of Europe to replace them with non-European peoples. Camus's "Great Replacement" theory has been translated on far-right websites and adopted by far-right groups to reinforce white genocide conspiracy theory. Although Camus has repeatedly condemned and disavowed the use of violence, his theory has nevertheless influenced several mass shootings, including in Christchurch, El Paso, and now Buffalo.

Known exclusively as a novelist and poet until the late 1990s, Camus received the Prix Fénéon in 1977 for his novel Échange, and in 1996 the Prix Amic from the Académie Française for his previous novels and elegies. His “chronicle” Tricks (1979) and Buena Vista Park (1980) were deemed influential in the LGBT community at that time. He was also a columnist for the French gay magazine Gai Pied. At the time, The Nation labeled him a "gay icon" who "became the ideologue of white supremacy.”

Camus was a member of the Socialist Party during the 1970s and 1980s. He voted for François Mitterrand in 1981. Thirty-one years later, during the 2012 presidential campaign, he dismissed the party with the following remark: "The Socialist Party has published a political program titled Pour Changer de Civilisation ("To change civilization"). We are among those who, to the contrary, refuse to change civilization." In 1996, he had an epiphany which he said led to the concept of the "Great Replacement,” while editing a guidebook about the French region of Hérault. He claimed that he "suddenly realised that in very old villages (...) the population had totally changed too," and added, "this is when I began to write like that." In 2002, he founded his own racialist political party, the Parti de l’In-nocence ("Party of No-harm"), which advocates remigration, i.e. sending all immigrants and their families back to the country of their origin, and a complete cessation of future immigration. Since his 2010 and 2011 books L'Abécédaire de l'in-nocence ("Abecedarium of no-harm") and Le Grand Remplacement ("The Great Replacement")—both unpublished in English—Camus has been warning that "replacist elites" are colluding against the White French and Europeans in order to replace them with non-European peoples—specifically Muslim populations from Africa and the Middle East—through mass migration, demographic growth and a drop in the European birth rate; a supposed process he labeled "genocide by substitution."

After white supremacist protesters at the 2017 Unite The Right Rally in Charlottesville, Virginia were heard chanting "You will not replace us" and "Jews will not replace us," Camus stated that he did not support Nazis or violence, but that he could understand why white Americans felt angry about being replaced, and that he approved of the sentiment. In November 2018, he released a new book written in English and intended for an international audience, titled You Will Not Replace Us! He continued to defend the "Great Replacement" theory on his Twitter account, which had 54,000 followers before its permanent suspension in October 2021. (As a private business, Twitter was entitled to enforce its Terms of Use and Community Standards to remove Camus.)

In April 2014, Camus was fined €4,000 for incitement to racial hatred after he referred to Muslims, during a conference in December 2010, as "hooligans" and "soldiers" and as "the armed wing of a group intent on conquering French territory and expelling the existing population from certain areas". In April 2015, the Court of Appeal of Paris affirmed this decision. But it’s very important to note that his conviction and fine under French law for “hate speech” did not prevent him from continuing to promote the “Great Replacement” theory and did nothing to prevent others from promoting it. There is no reason to believe that similar laws in the United States would be any more effective in silencing the “Great Replacement.”

Camus has a number of defenders among French-Jewish conservative thinkers, most notably Alain Finkielkraut, who has taken his side in the controversy since 2000. "Demographic substitution," Finkielkraut said to The Nation in 2019, is "not a conspiracy theory," but he dismissed Camus' frequent talk of "genocide by substitution." Éric Zemmour, a French conservative journalist of Sefardi Jewish descent, is one of the most prominent mainstream advocates of Camus' theory. Additionally, various right-wing and far-right French-speaking Jewish websites, such as Dreuz.info, Europe-Israël or JssNews, have positively received Camus' conspiracy theory and have called their readership to study his books.

Political scientist Jean-Yves Camus [apparently no relation] and historian Nicolas Lebourg have noted that contrary to the white genocide conspiracy theory, Renaud Camus' "Great Replacement" does not include an anti-Semitic Jewish plot, which is, according to them, a reason for its success. Ironically, French journalist Yann Moix, who had accused Camus of being an anti-Semite in 2017, was fined €3,000 by a French Court of Appeal for libel on 13 March 2019. Moix's conviction was overturned in January 2020 by the French Court of Cassation, judging that his comments "were the expression of an opinion and a value judgment on the personality of the plaintiff (...) and not the imputation of a specific fact."

A 2018 survey found that 25% of the French subscribed to the theory of the "Great Replacement.” The theory has been cited by Canadian political activist Lauren Southern in a YouTube video of the same name released in July 2017. By 2019 Southern's video had attracted more than 670,000 viewers. The "Great Replacement" theory is a key ideological component of Identitarianism, a strand of white nationalism that originated in France and has since gained popularity in Europe and the rest of the Western world.

The "Great Replacement" was also the name of a manifesto by terrorist Brenton Harrison Tarrant, the Australian-born perpetrator of the Christchurch mosque shootings that killed 51 people and injured 40 others. Camus condemned the massacre and described the shootings as a terrorist attack, while adding that Tarrant's manifesto had failed to understand the “Great Replacement” theory. Instead, conveniently Camus said that he suspected the attacks to be inspired by acts of Islamic terrorism in France. In a discussion with The Washington Post, he said that while he was against the use of violence, he still supported a sort of "counter-revolt" against non-White immigration and had no issues with the majority of his supporters' beliefs. Likewise, Tarrant's manifesto and the “Great Replacement” theory were also cited in The Inconvenient Truth by Patrick Crusius, the perpetrator of the 2019 shooting at a Walmart store in El Paso, Texas, that killed 23 people and injured 23 others.

The “Great Replacement” theory has domestic antecedents in America including Henry Ford’s promotion of “The Protocols of the Elders of Zion” which, using an entirely fictional depiction of a powerful Jewish conspiracy that controlled world events, has influenced racist beliefs since its publication in the early 20th century. In addition, fears of immigration and the changing racial composition of the United States inspired the discredited eugenics movement as well as anti-immigrant campaigns championed by such progressives as Theodore Roosevelt. The first and second waves of the Ku Klux Klan, followed by the rise of neo-Nazis, militiamen, skinheads, and the White Power Movement into the 1980s and 1990s, fomented fear of the “Zionist Occupational Government” and the “New World Order.” The Turner Diaries (1978) envisioned a white-dominated world established through race war and genocide. As mentioned above, in August 2017, white supremacists carrying tiki torches at the Unite the Right Rally in Charlottesville chanted “You will not replace us!” and “Jews will not replace us!” And the insurrection at the US Capitol on January 6, 2021 was filled with white supremacist grievances driven by the very same ideology behind the “Great Replacement” theory.

Over a month before the Buffalo massacre, the Anti-Defamation League complained to Fox News that in a segment on his program the night before dealing with voting rights and allegations of voter disenfranchisement, Tucker Carlson “disgustingly gave an impassioned defense of the white supremacist ‘great replacement theory,’ the hateful notion that the white race is in danger of being ‘replaced’ by a rising tide of non-whites.” In a letter dated April 9, 2021, Jonathan A. Greenblatt, CEO and National Director of the ADL, warned Suzanne Scott, Chief Executive Officer of the Fox News Channel, “Make no mistake: this is dangerous stuff. The ‘great replacement theory’ is a classic white supremacist trope that undergirds the modern white supremacist movement in America. It is a concept that is discussed almost daily in online racist fever swamps.” Greenblatt added, “this is not legitimate political discourse. It is dangerous race-baiting, extreme rhetoric. And yet, unfortunately, it is the culmination of a pattern of increasingly divisive rhetoric used by Carlson over the past few years. His anti-immigrant rhetoric has embraced subtle appeals to racism and, at times more blatantly has put him on the same side as white supremacists.”

Greenblatt offered a sampling of examples gathered from his Fox show.

  • In January 2022, Carlson offered his viewers “a full-throated defense of the antisemitic QAnon conspiracy theory.” 
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  • In December 2020, Carlson “parroted white supremacist and antisemitic conspiracy theories by blaming Jewish philanthropist George Soros for Americans being ‘robbed, raped and killed.’” 
  • Last July, he questioned “the patriotism of two Democratic members of Congress who are both women of color: Rep. Ilhan Omar and Sen. Tammy Duckworth of Illinois,” and referring to their immigrant backgrounds, said, “Maybe we are importing people from places whose values are simply antithetical to ours.” 
  • Days after the mass shooting attack in August 2019 at an El Paso Walmart at the hands of an avowed white supremacist, Carlson suggested that white supremacy in America was “not a real problem.” 
  • In January 2021 he again questioned whether white supremacy was even real, saying, “So again, what is a white supremacist? You might be surprised to learn just how broad the definition for that has become.” 
  • In December 2018, Carlson suggested immigrants make the U.S. “dirtier.”

Greenblatt pointed out that Carlson has attacked ethnic diversity in this country, saying, in 2018, that it was “radically and permanently” changing America for the worse. Carlson has also claimed that immigration makes the country “poorer, and dirtier, and more divided.” Past guests on his show have included Pete D’Abrosca, who has expressed sympathy for alt-right leaders; British commentator Katie Hopkins, who was banned from Twitter for violating its hateful content policy; and U.S. Rep. Steve King of Iowa, whom he defended for tweeting that America could not “restore our civilization with somebody else’s babies.”

Greenblatt called it “shocking to hear this kind of open-ended endorsement of white supremacist ideology from an anchor and commentator on your network. At ADL, we believe in dialogue and giving people a chance to redeem themselves, but Carlson’s full-on embrace of the white supremacist replacement theory on yesterday’s show and his repeated allusions to racist themes in past segments are a bridge too far. Given his long record of race-baiting, we believe it is time for Carlson to go.” Fox ignored the ADL and Carlson continued to peddle the “Great Replacement” theory before and after the Buffalo shootings.

The point is that banning from social media the “Great Replacement” theory and all the rest of the racist and anti-Semitic garbage that goes with it, will not eradicate these ideas. Tucker Carlson and Jean Renaud Gabriel Camus and their ilk will continue to spread these racist and hateful ideas. Equally important, attempting to ban “hate speech” and “racist speech” from social media won’t work for many reasons.

New York Governor Kathy Hochul, a native of Buffalo, told NBC’s “Meet the Press,” “I’ll protect the First Amendment any day of the week. But you don’t protect hate speech. You don’t protect incendiary speech. You’re not allowed to scream ‘fire’ in a crowded theater. There are limitations on speech. And right now, we have seen this run rampant. And as a result, I have ten dead neighbors in this community. And it hurts. And we’re going to do something about it.” She later announced two initiatives with contradictory goals. First: “We’re going to ensure that we have the best-in-the-nation cybersecurity teams to monitor the places where radicalization occurs. We’re watching you now. We know what you’re up to. And we’ll be coming after you.” That proposal is in line with the fact that social media give law enforcement the opportunity to monitor the activities of people who are planning mayhem and murder. But then Hochul also announced “a referral to the attorney general’s office to investigate the social media platforms that broadcast this horrific attack, that promote and elevate hate speech and legitimize the replacement theory.”

New York Attorney General Letitia James tweeted in response to the referral from Governor Hochul, “This terror attack again revealed the depths and dangers of these platforms that spread and promote hate without consequence.”

Likewise, Bryan Brown, Mayor of Buffalo, told CBS’s “Face the Nation” that “we have to put more pressure on lawmakers in Washington.” He urged that it’s not just Buffalo, New York; “It's communities in every corner of this country that are unsafe with guns and with the hateful ideology that has been allowed to proliferate on social media and the Internet. That has to be reined in. That has to be stopped. It's not free speech. It's not American speech. It's hate speech, and it must be ended.”

Unfortunately, despite their genuine sympathy for the victims of racial violence and the urgent desire to eliminate it, which all compassionate people share, Hochul, James, Brown, and too many others are confusing the public and are spreading false information when it comes to social media and the First Amendment. This will only make it more difficult to reach a national consensus to build a safe and thriving multi-racial democracy.

However, it is also true that there are limitations on free speech. The First Amendment is not absolute. Over the past hundred years, the courts have identified a few narrowly defined exceptions such as defamation, obscenity, true threats against an individual, commercial fraud, conspiracy to commit violence, and speech directed to incite imminent lawless action and likely to do so.

There is no exception for what the New York officials and many others call “hate speech” or “racist speech.” That’s because these terms are far too subjective and ambiguous to serve as legal terms on which to base laws and restrictions that would ban in advance certain words, expressions, or ideas and would impose criminal, civil or other punishments on people for using them.

While everyone may have their own working definition of “hate speech” or “racist speech,” our laws and regulations need to contain clear and objective definitions so that people know in advance what words, ideas, ideologies, practices, and policies they are allowed to express, at the risk of breaking the law.

In just a moment of reflection, many possibilities come to mind which might – or might not – qualify to be blocked, canceled, or placed beyond the realm of debate in a world controlled by the speech regime the New York officials are recommending: Is it racist or hateful to argue that Democrats want to win elections by increasing immigration and expanding the right to vote? Is it racist or hateful to claim that doing so will replace white votes? Is it racist or hateful to counter “Black Lives Matter” with a demand that “All Lives Matter”? Is it racist or hateful to call racial sensitivity training “divisive anti-American propaganda”? Is it racist or hateful to label Critical Race Theory “cult indoctrination”? Is it racist or hateful to deny that America is inherently a racist country? Is it racist or hateful to complain about multiculturalism, ethnic studies, and identity politics? Is it racist or hateful to claim that there is more Black-on-Black crime compared to police shootings of unarmed Black men? Is it racist or hateful to argue that affirmative action programs constitute reverse discrimination against whites? Is it racist or hateful to object to reparations? Is it racist or hateful to prohibit the teaching of the New York Times 1619 Project in public schools? Is it racist or hateful to deny the existence of white privilege and white fragility? Is it racist or hateful to deny that systemic racism exists in law enforcement? Is it racist or hateful to demand that athletes salute the American flag rather than take a knee? Is it racist or hateful to oppose the removal of Confederate statues? And so on.

Remember, to deem the expression of any or all of these ideas “racist” or “hateful” in a law passed by Congress or state legislatures is to exclude them from any further debate and to allow them to be blocked, canceled, or banned when (or even before) they are uttered. This is the essential problem with what the New York officials are proposing.

And there are other problems with their proposals. They assure us that they will “protect the First Amendment any day of the week” and that they are not “censors,” but in fact their entire argument – placing certain speech beyond debate and allowing it to be blocked, canceled, and banned – means that they endorse government control over certain categories of speech, and that’s called censorship which does violate the First Amendment. It plays into the hands of the Payton S. Gendrons of the world as well as Richard Spencer or other alt-right speakers who argue that their ideas are not permitted to see the light of day because they are irrefutable and the rest of us cannot prove them wrong, handing them the hallowed role of Defenders of Free Speech, which may attract new followers.

The New York officials also make the mistake committed by other proponents of limiting free speech: They never do the heavy lifting of explaining who is going to decide what constitutes “racist speech” or “hate speech.” One hundred years of Supreme Court interpretation of the First Amendment, involving thousands of scholars, judges, lawyers, and advocates, has never been able to devise such a definition that passes constitutional muster bound by requirements of fair notice, due process, and the prohibition on content-based prior restraints.

Are we to leave such decisions to 50 different state legislatures enacting 50 different sets of speech restrictions? Many of these legislatures have already passed “Don’t Say Gay” laws or laws banning Art Spiegelman’s Maus, or the teaching of Critical Race Theory or the New York Times award-winning 1619 Project, or math books with lessons that may be upsetting to white students. Or should we just leave it to Congress to figure out?

A related problem is whether commentary, criticism, and condemnation of racist and hateful speech would itself fall victim under these laws. Would the portions of books and articles quoting racist speech need to be redacted to prevent the spread of these discredited ideas by the very practice of “repetition,” which the New York officials condemn? Would portions of the article you are reading right now fall afoul of these prohibitions? And given the subtleties of language and argumentation, how would “the Social Media Censorship Board” ever be able to distinguish between condemnation and advocacy, not to mention all the shades of opinion in between. The New Yorkers’ free speech regime would have unintended consequences, especially in classrooms, town halls, political debates, or other forums where the use of “devil’s advocacy” is a tried and true method of exposing the fallacies of racism.

In her book HATE: Why We Should Resist It With Free Speech Not Censorship (2018), Nadine Strossen, law professor and former President of the ACLU, describes over 75 examples and commentaries regarding the actual enforcement of “hate speech” laws in foreign countries against minorities and others, many resulting in fines and imprisonment. This enforcement has led to societies that are far less free and open to discussions of important public issues and continue to be beset by widespread hate crimes and acts of bigotry and discrimination. Although the 1965 British “hate speech” law was passed to quell growing racism against minority groups, the first person convicted under that law was a black man who cursed a white police officer. Throughout the 1960s and 1970s, leaders of the Black Liberation Movement in Britain were regularly prosecuted under the law. In 2008, Brigitte Bardot, French film star and longtime animal rights activist, was convicted and fined €15,000 for writing a letter to a French official complaining about the Muslim ritual of slaughtering sheep and accusing Muslims of “destroying our country by imposing their ways.” More recently, two British street preachers who were simply reading from the Bible were convicted of insulting LGBTQ persons and Muslims. Laura Pora, head of the Paris chapter of the LGBTQ rights organization ACT-UP, was fined €2,300 in 2013 for calling the president of an organization that defends “traditional family values” a “homophobe.” In 2015, France’s highest court upheld criminal convictions and a $14,000 fine for twelve Palestinian activists who wore T-shirts at supermarkets with the message “Long Live Palestine, boycott Israel” and handed out fliers that said “buying Israeli products means legitimizing crimes in Gaza.” A Danish appellate court in 2016 affirmed the conviction of a man for a Facebook comment that “Islam wants to abuse democracy in order to get rid of democracy.” The experience of other countries shows that laws against “hate speech” can either backfire and be used to silence the very voices we need to hear or punish controversial statements that are part of the debate on matters of public interest.

Finally, we must address perhaps the greatest threat this restrictive regime poses for the ultimate goal of eradicating fascism, racism, sexism, homophobia, and other systems of invidious oppression. Let’s imagine the New York officials succeed in establishing their regime on social media. What about college campuses, libraries, city councils, state legislatures, and eventually Congress, installing “committees” at every level of public and private life to designate certain ideas, ideologies, policies, and practices beyond debate and therefore subject to blocking, canceling, and banning? But what if the membership of “the committees” were to change? What if white supremacists took control first at a few universities here and there, then a few libraries here and there, then more and more cities councils and state legislatures, and eventually Congress, and the White House? Now in control, they remember only too well the one-sided rules and procedures established under the New York regime that had systematically suppressed their racist truths. Based on precedent, the new “committees” promptly declare anti-racist ideas “beyond debate” and proceed to systematically block, cancel, and ban them because they are false and anti-American “propaganda.” Without the classical liberal First Amendment protections for free speech that we rely on today, this content-based regime would allow anti-racist ideas to be placed beyond debate and subject to blocking, canceling, and banning.

Censorship can be habit-forming. Private companies like Twitter, Facebook, Discord, and Instagram (and their users) enjoy First Amendment rights which prevent the federal, state and local government from regulating the content expressed on social media, except the narrow exceptions mentioned above which apply to all speech. Despite its pervasiveness, social media platforms remain private; there is no state action involved and they are not public forums subject to the First Amendment restrictions that would apply to a traditional public forum established by government.

None of this means we should let social media platforms off the hook. The decisions they make and the algorithms they use to amplify angry and divisive speech are the legitimate target of criticism, condemnation, cancellation of subscriptions, and political boycotts. We should encourage social media companies to establish and enforce Terms of Service that allow for wide open, robust free speech but that also moderate hateful and inflammatory speech. Indeed, these private companies can greater steps in banning categories of speech that would be unconstitutional if imposed by the government. But that does not mean such standards can be imposed by the government, any more than the government could impose standards on The New York Times or NBC News or the Associated Press. The editorial decisions made by social media platforms and other private entities are fully protected by the First Amendment from any content-based regulation by government.

The first Jew on the Supreme Court, Justice Louis Brandeis was personally familiar with racist speech, having been subjected to a scurrilously anti-Semitic confirmation process in the U.S. Senate in 1916. Without harboring any delusions that the opportunities for free speech were equitably and fairly distributed through society, Brandeis nonetheless believed deeply that instead of suppressing hateful or offensive speech, the best remedy was the use of more speech to refute, dismantle and condemn such speech, thereby exposing and discrediting it and promoting a vision of equality and justice in its place.