Is There a Right to Post Hate Speech Online?

Let’s say that I tell people they can post signs in my front yard as long as the signs met certain terms and conditions that I establish. They agree to these terms and conditions, but after a while I decide that some signs go beyond what I am comfortable with putting on my yard, such as ones that support the Ku Klux Klan or Nazism, that are racist or advocate violence, or that are just plain loony. 

It does not violate the right to free speech if I choose not to allow the Flat Earth Society or people who believe pizza parlors are part of a hidden pedophile ring to put up a sign in my yard, so I remove them and forbid their replacement. This does not deny Klu Kluxers, Flat Earthers, or QAnon the right to engage in free speech. They can put their signs in their own front yard or someone else’s if they can find a yard owner willing to accept them. They simply cannot put them on my property.

In fact, a good argument can be made that forcing me to accept signs on my front yard actually violates my rights. If I am forced to put up a sign on my private property that I disagree with or no longer approve, my rights are being violated. If Congress or the courts attempt to force me, they are violating my rights. The issue here is not free speech, but property rights.

This is a good way to think of the debate over what should be allowed on social media by social media companies. It is not a perfect example because the social media companies have taken a sort of quasi-public function, stemming from early beliefs about the internet as an untrammeled space, but no one would demand, for example, that the Wall Street Journal or New York Times must publish op-eds by people whose views they find objectionable. It is their editors’ choice—and we do not want government telling editors what they must publish.

In some ways, the social media companies have put themselves in this position due to their past resistance to taking responsibility over what is posted. Their argument was that they were simply a bulletin board, what was posted was not their concern, and the public would not want them to become censors or editors. While that might have been appropriate 15 years ago, it is no longer adequate for the position social media occupies today. The answer now is yes, we do want them to be editors. The argument that social media should be unconstrained has been dismissed when it comes to child pornography or pirated music, and very few argue that child pornographers’ rights are being violated because they cannot post.

If people believe that their views are being unfairly suppressed when they are not allowed to post on the major social media platforms, there are alternatives they can use. For example, 4Chan, the site where the hacker groups Anonymous and the conspiracy “theorists” QAnon got their start, allows postings that praise Nazi Germany and Hitler. Free speech remains unconstrained.

What is actually being objected to is not suppression of speech, but that falsehood and extremist propaganda is prevented from being posted on platforms that reach millions of people, a broad audience not available when people have to go to the dark web. This is not, however, denying freedom of speech. There is no right in this country to force the publication of certain views in private media outlets if those outlets choose not to do so, and to use the state to force them to publish would run counter to all libertarian beliefs (as well as the general tenets of democratic governance). 

Social media companies need to mature and accept more responsibility. They do need editors; they do need to play a greater role in ensuring that they are not allowing extremist posts or falsehoods (whether domestic or foreign in origin) that contribute to the unraveling of the social fabric they depend upon. The Bill of Rights does not allow the United States go as far as France or Germany, where hate speech glorifying Nazis is forbidden (and no one in their right mind would argue that France and Germany are not democracies), but the same constitutional protections apply to efforts to use legislation or congressional pressure to force a private company to post material with which it disagrees. Fundamental rights work both ways, and in this case, social media companies have the right to choose what is posted on their sites without hindrance from Congress or the courts.

James Andrew Lewis is a senior vice president and director of the Strategic Technologies Program at the Center for Strategic and International Studies in Washington, D.C

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