THE CURRENT STATE OF LIABILITY FOR “CAUSAL” SPEECH: As a committed civil libertarian and experienced advocate of First Amendment freedoms in all its forms, I — like most Instapundit readers — reject the notion that someone’s “feels” were damaged by something they read, watched or heard and subsequently they deserve financial compensation in law.
Blaming speech for things other people do (in violation of alleged cultural norms) is equally repugnant. It strips the moral agency from the reader and viewer, and is paternalism in its most abhorrent form. We’ve seen it a million times. I was in a newsroom when Rep. Giffords was shot, and heard editors immediately yelling at reporters to start looking for “right-wing” media that Jared Loughner may have been “inspired” by. Massive fail. I mean, just look at the guy.
When liberal fascists strip away peoples’ moral agency (and thus, the notion of individual responsibility) they then believe they have license to regulate speech on an imaginary causal link to violent acts. Fortunately, the law rejects this for the most part.
Short of lawsuits, of course, if your club hates a particular person, they can virtue signal their “honorable” intentions by targeting others and sweeping them into a “basket of deplorables.” (As an aside, Hillary Clinton will never know how much damage she did to the body politic with that craven polarization). Media and public figures with a conservative leaning readership or following are consistently smeared as “right-wing.” This agreed-upon narrative is underwritten by a well funded campaign to ruin their reputations and bring them down by pressuring advertisers, or just plain hysterical cybermob “deplatforming.”
The motive reasoning varies, but it is usually justified as targeting “disinformation” that “destroys democracy.” A laughable and overbroad notion, but there’s gold in them there hills: Some hucksters have ginned up a for-profit business model called “NewsGuard” that deems itself the moral authority on who is and isn’t producing “disinformation.” The curious part is that this company is advised by (Ret.) General Michael Hayden. He’s one of the 51 signatories to the infamous and now thoroughly discredited “Russian disinformation” letter that was used to silence reporting about Hunter Biden’s laptop. How these guys can claim the high moral ground is beyond me.
So which exceptions allowing speech restriction are philosophically acceptable and pass constitutional muster? Obviously, speech that knowingly provides a direct opportunity to engage in sex trafficking, murder, and the like. But burning the American flag is protected speech (although I can think of several friends who would be motivated to punch the arsonist’s lights out). Even generalized death threats against the President of the United States, without more, have been protected as “hyperbolic” and “expressive” speech. Remember this little gem that was passed around by Occupy Democrats and the Koz Kids? Oh what fun we had. Good times, good times.
But claims of emotional distress caused by watching something have always failed. Yet an interesting case is developing in California. For quite some time, the nanny state has been demanding more and more supervision of speech by BigTech social media companies who claim to be mere conduits. They want it both ways, exerting influence over social media and denying responsibility at the same time. Yielding to public and political pressure, they have hired teams of moderators (usually with a far-left bent) to scour the platform and remove offensive postings.
Can you imagine sitting in front a screen all day having to sift through Anti-Semitism, ethnic slurs, gruesome videos and obscene photographs? Moderators at Tik-Tok have filed a suit against their employer’s parent company, claiming that “the company did not adopt reasonable measures to mitigate harm from having to watch disturbing content.” Courthouse News reports that:
“As part of their jobs, Reece Young and Ashley Velez say they watched hours of disturbing videos showing necrophilia, bestiality and violence against children, while working for independent “content moderation” firms ByteDance hired. The plaintiffs claim that as a result, they were unable to take breaks from graphic videos because queues of videos which were not supposed to contain graphic content often did, and the resulting harms were exacerbated by ByteDance’s strict productivity standards.”
The judge in the TikTok case has denied the company’s Motion to Dismiss, and it may very well proceed to trial. On one hand, this is one of those “why can’t they both lose?” moments. The usual — and winning — argument against would-be censorship is simply replying that “if you don’t like what you see, change the channel.” But to be fair, these people can’t change the channel.
So the irony abounds here: “We know better than you, so shut up and listen only to state-approved media.” Then, when part of that approval process requires people to be exposed to arguably offensive material, the nanny state has backed itself into a corner. They can’t claim speech “causes” harm except in instances where they are trying to determine if that same speech is capable of causing harm.
Pretzel logic, indeed. This is going to be fun. I’ll go make popcorn.
