Suzanne Nossel headshot

Photo by Beowulf Sheehan

Every Friday, we discuss tricky questions about free speech and expression with our CEO Suzanne Nossel, author of Dare to Speak: Defending Free Speech for All, in our weekly PEN Pod segment “Tough Questions.” In this week’s episode, we talked about the consequences of shutting people on the right out of social media platforms and whether such action violates First Amendment rights, the importance of security measures during the upcoming inauguration, and how loosening the legal definition of incitement in the process of Trump’s second impeachment could threaten free speech. Check out the full episode below (our interview with Suzanne begins at the 14:05 mark).

It’s been well over a week since the Capitol Hill insurrection. In just that time, Parler has been hobbled, Trump knocked off social media, and those who voted to overturn democracy are seeing their positions revoked, board memberships taken away, their books being shut down. Are we seeing a silencing of the right, or are we seeing a corrective to a corrosive kind of speech?
 Look, I think it’s a bit of both. We have to, in analyzing this, separate out deplatforming that is justified, on the basis of what somebody has said or the harm that they’ve caused, and the question of whether deplatforming is a good idea in a utilitarian sense—what the consequences will be, whether it will do more good than harm. The first prong, whether it’s justified, I think in virtually all of these instances involves private companies that have every right to decide who gets a voice on their platform.

Twitter, we know, has parameters and rules—if you violate them, you will be kicked off. That’s happened to neo-Nazis, to white supremacists, to Alex Jones the conspiracy monger. A platform like Parler is doing business with Amazon, Google, and Apple and their app stores—they have the discretion to decide who they want to be in partnership with. Simon & Schuster, the publisher, can decide that a contract that is signed is not something that it wants to go forward with—they may owe some damages to Josh Hawley, but they’re within their rights to do that. So I don’t think there’s much question. There’s a justification in a sense that these companies have the discretion to apply their own value judgments to these situations.

“We have seen that these cries of cancel culture, the sense of grievance that certain voices are being shut down, excluded, and drowned out, is a potent message that the right uses again and again to rally support. There are people who believe that this is an outrage and that, even if they may not agree with everything that Trump or Josh Hawley says, the minute they’re being silenced or shut down, that’s something that worries some of them, and that may motivate them to even more staunchly stand by their side.”

I do think, when it comes to the consequential question—what happens in the wake of this—that there are a number of things that need to be considered. In my view, when it came to Twitter and Trump, the calculus changed after the election. I thought before the election that there was more benefit to having the public hear directly these unfiltered, noxious messages from the president. There’s some evidence even that some of his most outlandish and incendiary tweets may have hurt him at the polls—people would say that they thought his Twitter was a detractor to his favorability and to their perceptions of him. So I think muzzling him during that period could have allowed him to present a more polished version of himself that might’ve been more appealing to suburban voters.

The other issues are really in terms of what happens if you do cut people off. The very existence of Parler was due in part to an exodus from Twitter and Facebook—some of it forced and some of it voluntary, owing to the nature of incendiary conservative posts, messaging, and conspiracy mongering that was taking place on those platforms, and much of which migrated to Parler. In the Parler arena, that’s only one level less visible.

There are all kinds of subterranean platforms and arenas—4chan and 8chan—where people can exchange messages, rally, plot, purvey conspiracy theories, and none of that sees the light of day. So if you believe in a marketplace of ideas and the idea that sunshine is the best disinfectant, then you want those ideas to be contested—you want them to be seen and read by people who will disagree, who will rebut, who will bring facts to counteract a falsehood. In these shadowy fora, that doesn’t happen—it’s a purely self-selected group that agrees, and it just riles itself up and can become more and more extreme. That’s one risk that comes from kicking people off mainstream platforms.

“There’s nothing wrong with requiring that people go through metal detectors, that they not be allowed to bring things with them, that they stay in a certain area that may be quite far away from the inauguration. Those kinds of time, place, and manner restrictions are lawful and appropriate, as long as they are applied in a viewpoint-neutral way, and you don’t have a women’s rights group or pro-Biden group that is given privileged status over a group that may be protesting the inauguration. So I think there is a way to do it to ensure that rights of assembly are protected, but the inauguration is kept safe and secure.”

Another is fueling the sense of righteous indignation that seems so sanctimonious and baseless. When you hear people like Josh Hawley, who is complaining that his First Amendment rights are being violated when a private publisher rescinds their intention to publish his book, it’s just purely specious. And yet, we have seen that these cries of cancel culture, the sense of grievance that certain voices are being shut down, excluded, and drowned out, is a potent message that the right uses again and again to rally support. There are people who believe that this is an outrage and that, even if they may not agree with everything that Trump or Josh Hawley says, the minute they’re being silenced or shut down, that’s something that worries some of them, and that may motivate them to even more staunchly stand by their side. These are all things that need to be factored in when you ask the question of whether we should be shutting people out of platforms or shutting platforms down entirely.

We’re heading into the inauguration next week, and there was a clear security threat in Washington. So we’re seeing now military and law enforcement all teaming up to make sure that the Capitol is safe. At the same time, there’s concern that there’s overcorrection that could be happening as well—that we could be stifling folks’ ability to organize and to protest under the protections of the First Amendment. Do you think that’s a threat?
 I think they’re both things to be concerned about. I think that those organized for the inauguration are right to be on absolute red alert when it comes to security. We know that there have been threats not just in Washington, but in State Capitols, so that’s a very valid concern. It’s extremely important for the country that the inauguration go forward and be uneventful, with a peaceful transition of power. I think that’s job one.

I understand that there have been dozens of protest permits that have been granted in Washington, D.C., and I think there’s nothing wrong with requiring that people go through metal detectors, that they not be allowed to bring things with them, that they stay in a certain area that may be quite far away from the inauguration. Those kinds of time, place, and manner restrictions are lawful and appropriate, as long as they are applied in a viewpoint-neutral way, and you don’t have a women’s rights group or pro-Biden group that is given privileged status over a group that may be protesting the inauguration. So I think there is a way to do it to ensure that rights of assembly are protected, but the inauguration is kept safe and secure.

“My concern in the op-ed is to ensure that nothing that is said or done in the course of the impeachment process that loosens or waters down that standard, because it’s a standard that applies to people who organize civil rights marches or Black Lives Matter protests or immigrants’ rights protests or mobilizations on a whole range of issues, and who need the freedom to be able to rile other people up, to speak forcefully and emotively without worrying that they may be caught up in a charge of incitement.”

Finally, we published this week on our website an explainer of sorts about the different terminology that’s being used around free speech, free expression, and the insurrection that we saw on Capitol Hill last week. One of the terms that gets thrown around a lot is “incitement” and “incitement to violence.” You actually have a piece in The New York Times this week, arguing that President Trump’s rhetoric doesn’t quite meet the legal definition of incitement to violence. Why is it that the definition is so narrow, and do you think that poses any hurdles as impeachment proceedings get underway?
 It’s interesting: Incitement is an issue that I have had occasion to focus on for some time. It really goes back to my work years ago at the U.S. State Department, when there was an international negotiation about freedom of religion, defamation of religion, attacks on people on the basis of their religion, and a view that incendiary content about alleged things like the Danish cartoons of the Muslim Prophet Muhammad constituted incitement to violence. As the United States, we were always in those debates, very forceful about our narrow legal standard for incitement, which is much more speech-protective than the operative legal approach in the rest of the world—we were very proud of this narrow approach to incitement as protective of free speech. So it was important to me to emphasize in the context of the impeachment that even though we’re using the word “incitement,” the concept of incitement is a colloquial notion that we all know—it’s about goading people into action.

People think Trump has been inciting for the last four years, but actually under the law, the only category of incitement that is recognized as an exception to the protection of the First Amendment is incitement to imminent violence, and there’s a three-part test that you have to satisfy for that. So my concern in the op-ed is to ensure that nothing that is said or done in the course of the impeachment process that loosens or waters down that standard, because it’s a standard that applies to people who organize civil rights marches or Black Lives Matter protests or immigrants’ rights protests or mobilizations on a whole range of issues, and who need the freedom to be able to rile other people up, to speak forcefully and emotively without worrying that they may be caught up in a charge of incitement, as DeRay McKesson—the Black Lives Matter leader—has been now for more than four years. It doesn’t, by any means, stand in the way of impeachment—the standard for impeachment. Treason, bribery, and other high crimes and misdemeanors are intentionally broad.

I think the Constitution recognized that they couldn’t anticipate every scenario in which a future Congress, centuries later, might see the need to oust a sitting president.