Call me crazy, but I don’t think it’s a good thing when political leaders go around calling for the arresting or punishing of people for their speech, even when that speech is terrible. But apparently, former Clinton cabinet member Robert Reich feels differently.
Indeed, it would be nice if the leadership of either major political party in the US didn’t think that censoring people they disagreed with was a great idea, but it seems to keep happening. Republicans love to censor all sorts of speech they dislike. But Democrats are similarly super quick to push for the silencing of all kinds of speech they dislike. Tragically, neither party has any sort of moral superiority here.
Sometimes it gets beyond stupid. For example, former Secretary of Labor (under Clinton), Robert Reich’s latest angry screed in the Guardian freaking about Elon Musk and suggesting a host of ridiculous ways to “rein in” Musk. Half of his suggestions are either obviously unconstitutional censorship, or just disgustingly censorial.
The column first calls out Musk for his partisan shift (which hasn’t actually been much of a shift at all), though it makes it clear that Reich thinks part of the reason why Elon is “out of control” is because of his political views. I may agree that Musk is out of control, but not because of his political views.
As ridiculous a character as Musk may be these days, and as silly and cynical his support of Donald Trump may be, calling for silencing someone over their political views is pretty fucking authoritarian. Yes, Trump himself does it, but that doesn’t mean others should follow Trump’s lead.
After spending a bunch of words to basically say that Musk’s support of Trump and other right-wing causes means he’s “out of control,” Reich then suggests “six ways to rein in Musk.” The first two are pretty straightforward versions of boycotting his businesses like ExTwitter and Tesla. And, sure, yeah, those are perfectly fine ideas, but as I write this, I see Reich himself has posted ten times to ExTwitter himself.
Be the change you want to see in the world, Robert.
But then the column goes completely off the rails with two obviously nonsense ideas. First, threats of jailtime:
3.Regulators around the world should threaten Musk with arrest if he doesn’t stop disseminating lies and hate on X.
Global regulators may be on the way to doing this, as evidenced by the 24 August arrest in France of Pavel Durov, who founded the online communications tool Telegram, which French authorities have found complicit in hate crimes and disinformation. Like Musk, Durov has styled himself as a free speech absolutist.
So, technically, this might not be a First Amendment violation, as he’s asking regulators “around the world” to do this, and outside of the US, they are obviously not bound by the First Amendment. But, also, holy shit, is this an authoritarian nonsense suggestion.
Note that Reich does not outline any actual crimes from around the world for which Musk should be threatened with arrest. He just compares it to Telegram and Durov, where the actual details still remain unclear, but from what’s been revealed so far, they appear to suggest actions that are not at all similar to what Musk is doing with ExTwitter (e.g., refusing to even respond to law enforcement requests regarding child sexual abuse material).
That is, potentially (again, details are not fully known!) very, very different than “complicit in hate crimes.” Threatening to arrest social media CEOs because “hate crimes” happen on their platforms is a very, very stupid and dangerous idea. It would lead to much less speech allowed online overall as the risk of criminal liability for speech you had no say in appears on your site.
Even worse, note that Reich includes at the end of this that “Like Musk, Durov has styled himself as a free speech absolutist.” Neither are actually free speech absolutists. We’ve written many words on Musk’s free speech hypocrisy (which, I guess, is similar to the politicians mentioned above). Durov just seems like he doesn’t care, not that he’s taking any sort of principled stance.
But either way, Reich seems to be implying that styling yourself a free speech absolutist is an arrestable offense. What the actual fuck is he thinking?
While the conservative media has (for once) rightly gone apeshit over this part of Reich’s column, I think his second suggestion is potentially even worse:
4.In the United States, the Federal Trade Commission should demand that Musk take down lies that are likely to endanger individuals – and if he does not, sue him under Section Five of the FTC Act.
Musk’s free-speech rights under the first amendment don’t take precedence over the public interest. Two months ago, the US supreme court said federal agencies may pressure social media platforms to take down misinformation – a technical win for the public good (technical because the court based its ruling on the plaintiff’s lack of standing to sue).
While the “rest of the world’s” regulators aren’t bound by the First Amendment, US officials absolutely are. And, no, the FTC cannot (under the First Amendment) demand that Elon remove “lies” from ExTwitter. Reich tries to cover himself with “lies that are likely to endanger individuals,” and there is a very narrow exception in extreme cases, but most lies that are likely to endanger individuals are still protected speech.
And, while some will likely disagree, this remains important. Because lots of people will falsely claim that any sort of speech is a “lie that endangers individuals.” In this very column, Reich is lying in a way that some could argue could “endanger” Elon Musk. Should the FTC be able to order it be taken down?
Would Reich be okay with a Donald Trump-controlled FTC ordering websites to take down content it deems likely to “endanger” people? That could include information on diversity, equity, and inclusion. It could include information on LGBTQ rights and medical support. It could include information on climate change. Or abortion. And Reich is suggesting that the FTC should have the ability to order the removal of it all.
Reich then is also pointing to the Supreme Court’s ruling in the Murthy case, though it’s clear he has no idea what that case was about or what the court actually said. He claims that it made it okay for federal agencies to “pressure social media platforms to take down information,” but that’s not fully accurate. It does say they can try to persuade. “Pressure” is a bit amorphous, as pressure could violate the First Amendment if it crosses over into coercion.
And, um, demanding content be removed with a threat of a Section Five lawsuit very much crosses the very, very, very obvious line beyond persuasion into coercion. Apparently, in Reich’s skimming of First Amendment cases from the Supreme Court, he completely skipped over the Vullo case that was heard the same day as Murthy and was decided a few weeks earlier. The Vullo case made it clear that outright threats of legal action over speech clearly violate the First Amendment.
Reich’s next suggestion is that the US government should terminate its contracts with SpaceX. There are many actual reasons to consider doing this, though it’s a lot more complicated than Reich makes out, in part because SpaceX is simply way further advanced than any other option.
But, the fact that Reich is suggesting that this be done in response to Musk’s political activity reveals that he wants it done for unconstitutional reasons. There are legitimate reasons to look for alternatives, around national security and redundancy. But since this whole column is about how the real problem with Musk is his support of right wing causes, Reich is saying the quiet part aloud: he wants to punish Musk for his political speech.
And that shouldn’t be how any of this works, no matter your feelings on Musk, Trump, or the current MAGA GOP.
