“Not freedom for the thought of those who agree with us, but freedom for the thought that we hate.”
This profound observation on free speech by the great American jurist Oliver Wendell Holmes has exceptions, which Holmes made clear in another First Amendment decision by noting that “speech that is false and dangerous is not protected” and no one is permitted the freedom of “shouting ‘fire’ in a crowded theater, causing panic.”
The Holmes remarks came to mind when pondering the decision by Facebook and Twitter to ban former president Trump indefinitely after he inspired a crowd to storm the U.S. Capitol on Jan. 6.
Holmes’s words on the thoughts we hate are from a dissenting opinion in a 1929 Supreme Court decision that blocked the citizenship application of a Hungarian immigrant named Rosika Schwimmer.
Schwimmer, in applying for the application, revealed that as a pacifist, she would not be willing to take up arms in defense of the United States. Even though Americans then, as now, had the right to conscientiously object to military service, the majority ruled that Schwimmer did not enjoy a citizen’s rights.
Over the years, Holmes’s ideas about limits on free speech had evolved. In 1919. he was part of a unanimous Court finding that the distribution of anti-draft leaflets represented a clear and present danger to government recruitment in wartime. He even likened the leafleting to falsely shouting fire in a theater.
But when wartime fever subsided, Holmes had second thoughts and in another leaflets case aimed at Russian immigrants supporting the Bolshevik Revolution. “A silly leaflet by unknown men,” he wrote, was not a clear and present danger to the nation and “should not be illegal.”
So how does all of this judicial thinking apply to the facts surrounding former president Trump’s loss of the use of Facebook and Twitter because of the role his words played in inciting the Jan.6 insurrection?
This final act of Trump’s tumultuous presidency resulted in death and destruction when his supporters attacked the Capitol while Congress was counting the 2020 electoral votes. It was surely akin to falsely shouting fire in a crowded theater and was both dangerous and false. And it was definitely not a silly speech by an unknown person.
But Facebook is a private company and such organizations are not subject to the First Amendment. However, that doesn’t mean the ban was fair and proper and Facebook had an independent committee of notables conduct an inquiry into its actions against Trump.
Former federal judge Michael McConnell, the co-chairman of that independent committee, has pointed out there was no violation of the First Amendment because private companies can, indeed, violate the amendment. Facebook and other social media can block whatever it deems unsuitable for whatever reason. However, they do so at the risk of offending public opinion, also known as their customers. Not to mention the trust busters in Congress, who can and do make laws upholding freedom of speech.
The committee also noted Facebook doesn’t treat all of its users equally and needs to take a hard look at its standards before it finds Congress taking a hard look at its anti-trust status. It criticized Trump’s ban and asked Facebook to reconsider.
What could amount to a lifetime ban on a former president, no matter how disreputable his conduct, is troubling. This is especially true in Trump’s case if he follows through on his threat to run again in 2024. Every candidate should enjoy equal opportunity to reach voters.
And even though the First Amendment doesn’t apply here, our collective consciences should not ignore Holmes’s admonition about the truth we agree with and the truth we hate.
While writing this coIumn, I came upon another memorable admonition that has haunted me since I first read it as a student. It was made in 1930s by the great German theologian Martin Neimoller:
“First they came for the socialists but I did not speak out because I was not a socialist.
Then they came for the trade unionists but I did not speak out because I was not a trade unionist.
Then they came for the Jews but I did not speak out because I was not a Jew.
Then they came for me and there was no one left to speak for me.”
And I thought maybe it was time to speak out, even for Donald Trump.
Simsbury resident Dick Ahles is a retired journalist. Email him at rahles1@outlook.com.
