Wednesday, November 27, 2019


Just why a roomful of serious-minded people decided to be lectured to about freedom of expression by a comic is hard to fathom. It was sort of like watching a football player on “Dancing with the Stars” – Cohen had no real talent as a rhetor, but he’s famous, and even when he scribbles outside the lines — folks get to say they saw him live and in person.

Cohen doesn’t like Facebook or Mark Zuckerberg. That’s fine. There are plenty of reasons not to like Zuckerberg. The fact that he won’t censor political advertising to suit the ADL is not one on those reasons.

Facebook gets immunity from suit for whatever it publishes, a privilege the press doesn’t enjoy. Facebook harvests data from users to sell to advertisers in a manner that is unaccountable. It pours its profits into the creation of proprietary algorithms that manipulate users, dividing people into silos it can target market at will. To add insult to injury, Facebook then decides on its own what content it will banish.

Because it is not a governmental entity, Facebook is not prohibited from engaging in content-based viewpoint discrimination. Thus, my client, Alex Jones is banned. The censors don’t like what he says. Want to listen to Mr. Jones or his show, Infowars? Then listen to Banned.Video. Facebook has shut Jones down.

Facebook’s power to shape desire, predict behavior and keep tabs of us is chilling.

This week, the BBC reported that China houses Uighur Moslems in indoctrination camps. You earn your way out of the camp by persuading your re-educators that you are reformed, that is, that you have learned Mandarin Chinese, lost your faith, and satisfied censors that you know how to behave. This is but an extreme version of what the Chinese are doing to their own people by means of social media – creating citizenship scores for its population. If you don’t satisfy the state-sponsored algorithm that your attitude is what the Chinese government want, you get less in terms of social services and access to goods.

Facebook is habituating us to accept the level of social control China takes for granted. That is what is terrifying about Facebook.

What is terrifying about Cohen and the ADL is that they are happy with this form of social control so long as they get to set the agenda.

Here, in condensed form, is Cohen’s argument:

1. People are free (sort of) to say hateful things on Facebook.

2. People like us – Cohen and the ADL – don’t like those hateful things said.

3. Therefore, we ought to be given the means to place limits on what can be said on Facebook.

Put bluntly – Cohen wants to be a censor. So does the ADL.

A better argument is to require that Facebook and other social media companies enjoying immunity from suit for what they publish be held to first amendment standards in deciding what they can and cannot publish. There is a body of first amendment law, principles that can be decided by jurists and that provide litigants with fair notice of what is and is not permitted. The first amendment is transparent in a way a stand-up comic and his cronies are not.

These are dangerous times from freedom of speech. The danger isn’t hate speech, whatever that is. We’ve always had vituperative speech in the United States. Hell, if someone were tarred and feathered or burned in effigy today, we’d probably declare a national emergency.

The danger is that social media creates an enormous capacity for social control. Zuckerberg misuses that ability now. Giving Cohen and the ADL the same power won’t make the world safe for freedom of expression, it will merely exchange one set of blinders for another.

I’m guessing the overlords in China watched the Cohen speech with approval. “He gets it,” they muttered. I wonder if his next gig will be in Beijing.

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