Hate Reviews and the First Amendment

Aaaaaaand – the latest round of blogger issues leads me to throw on my attorney hat and expound upon the First Amendment, because that’s what always gets thrown around when there is disagreement on the Internet. Here’s the context:

This week began with the blogger who ran “Requires Hate” being uncloaked as Benjanun Sriduangkaew, who has been publishing stories to acclaim within the SFF community. The week ended with the Guardian running a piece by YA author Kathleen Hale in which she described stalking someone who gave her a one-star review on Goodreads. In between, Anita Sarkeesian, a feminist critic of video games, canceled an appearance because she thought Utah State University was responding insufficiently to a horrific terrorist threat against her. It was, in short, an ugly week on the Internet.

There has been a lot of discussion, argument, and hurt feelings about all three of these incidents. I have no personal stake in any of them – I don’t even follow the actors on twitter.

Do I approve of “doxxing” (the practice of putting out personal information about an enemy online via documents)? Not generally. I suppose there might be a situation in which I did, but the Requires Hate and the Kathleen Hale incidents are not among them.

Do I approve of stalking? Absolutely not.

Do I think bloggers should be able to write what they want to about a book (even if it’s hateful and vitriolic)? Yes. Criticism and dissent are important to a healthy society.

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The text of the First Amendment is this:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (Emphasis mine.)

Later the Amendment was expanded to cover all government entities (i.e. state and local governments), not just Congress. The First Amendment was written to protect people from getting thrown in jail for criticizing the government. It has expanded to include lots of other forms of speech and even non-verbal forms of expression (dance, art, film). It is why we are allowed to say that the President is wrong or Congress is full of bone-headed goof-offs.

First Amendment cases that go to court are usually about whether or not the government has the right to prohibit a particular form of speech, such as picketing or heckling the city council. Cases often go to court when a town makes an ordinance forbidding pornography or hate speech, and the question for the court is whether the regulation has a “chilling effect” on free speech. These cases often get muddy because multiple issues are involved and have to be disentangled. It is not an easy issue.

Anita Sarkeesian’s First Amendment rights were trumped by the Second Amendment because Utah State University, a governmental entity, was unable to provide security for her to speak due to Utah’s gun laws. What’s important for this argument is that the person who threatened Sarkeesian did not violate her First Amendment rights by suppressing speech; the threatener was a private person. The threat was horrible and criminal, but has nothing to do with Sarkeesian’s constitutional rights. The University, on the other hand, did facilitate a “chilling effect” on her speech by not providing a safe place, and the Utah gun laws in effect suppressed her free speech rights. So violation of the First Amendment by the state is potentially implicated in the situation. (It would be a tough case.)

However, writing a review panning someone’s book is not protected by the First Amendment. Calling someone a racist is not protected by the First Amendment. Neither is being a racist. Shutting off comments to a blog or deleting an account from a social media network are perfectly legal things to do and infringe upon no one’s First Amendment rights.

Sometimes speech is dangerous or hurtful to a person. The legal system is set up to handle that through civil tort law – injury law – pertaining to defamation of character and libel or slander. As an additional check, some states have anti-SLAPP laws, which keep a plaintiff from being able to use the legal system itself to coerce a particular form of speech or behavior. The criminal system also has ways for harmful speech to be dealt with. Threatening someone online is a violation of federal law. Stalking is a criminal offense. The victim in these situations is protected by the justice system.

But not by the First Amendment.

A person who has made seemingly defamatory statements has the right to be free of threats or harassment from the subject, because those are criminal activities. A person who has been defamed has the right to sue, because defamation is an actionable injury under the American tort system.

When people cite to the First Amendment as the reason person X should be allowed to write mean things about person Y on the Internet, or when they say their free speech rights are being violated by other people arguing with them, or claim that censorship is being imposed because they got kicked off Facebook, or whatever, they are inaccurate. The First Amendment has nothing to do with what people say online provided that there is no law telling them what they can say or not say. Citing to the First Amendment to protect the right to call someone a social justice warrior or to claim a book is full of racism is meaningless.

What protects private speech among individuals is something called a “social contract” – an unspoken agreement that people make with each other in order to keep society functional. If you write something that is outside the bounds of the established social norm for speech, you’re going to get pushback. On the other hand, if people try to restrict criticism too much, they will get pushback. Factionalization in favor of one party or the other arises when there is disagreement about what the limits of the norm are. Social norms evolve over time. Law exists to step in when the social contract is insufficient to resolve a dispute.

Are hate reviews okay? I think they are a pretty vile thing to do (and if you are a person who gets your jollies by savaging other people you might ask yourself what you are afraid of and why you feel powerless), but they are not illegal. On the other hand, if a community as a whole decides it has had enough and wants to ostracize the hate reviewer, the community is allowed to do that. Speech has consequences. Sometimes the consequences are unpleasant. And the First Amendment is not a shield for the violation of the social contract.