Outlaw Censorship? Here's One Way How.
Outlaw Censorship? Here’s One Way How.
By: Jason L. Van Dyke, Esq.
In his discussion of “Ten Ways to Save America”, Gavin McInnes states that we need to outlaw censorship. But what does this really mean? We all know that the First Amendment protects us from the implications of government punishing us for free speech, but we have reached a point where that is no longer enough. Where information used to be spread to relatively small groups of people through word of mouth or print media, the modern era saw the introduction of the mass media through such inventions as the radio and television. The potential audience that could easily be reached by those with access to the airwaves grew significantly, but access to these means were still very limited in nature. A private person engaging in controversial protected speech might be covered by local media, but the publicity would begin and end there. This is no longer true. While we all love the First Amendment, it remains an enlightenment and pre-industrial age tool that is insufficient to deal with the major growing problem of private censorship in the information era.
The information age has ushered in an era where practically everyone has an audience that is almost completely unlimited and where those who would otherwise not even know of another person’s existence now have at their fingertips the means through which to destroy a person’s life and livelihood. Psychologists studying the effects of social media on our lives have written at length about the “disinhibition” that occurs when people say things about another person online. While they try to coat their language in jargon, it’s abundantly clear to the casual reader what they are trying to say: People online feel free to say things about another person that they know they would end up being punched for if the subject of their abuse was physically present. Absent the credible threat of being punched (due to anonymity or the geographical space between the parties), social media in the information area has created a society that would be almost unrecognizable to our founding fathers. If someone had tried to destroy the reputation or career of another during the era when our Constitution was written, they would invariably have found themselves shot. Even then there were the people who wanted to be left the fuck alone and those who wouldn’t leave them the fuck alone. For context: The Bill of Rights was adopted on December 15, 1791. Alexander Hamilton was mortally wounded in his duel with Aaron Burr on July 11, 1804.
The mother of our seventh President, the great Andrew Jackson, is quoted as telling her son “Andy, never sue somebody for assault or slander…..settle those matters yourself.” It really is too bad that dueling, or at least some other form of mutual combat to resolve minor matters of assault and slander, has gone the way of the dinosaur. If such remedies remained available, either culturally or at law, it would undoubtedly change social media and other information-era forms of communication entirely. We wouldn’t have notorious and truly contemptible Internet trolls like Kenneth “Popehat” White to worry about. What we have instead are “Anti-SLAPP” laws such as the Texas Citizen’s Participation Act. Tex. Civ. Prac. & Rem. Code § 27.001 et. seq. The irony of these laws is that they are designed to protect free speech, but in reality, operate in such a manner as to suppress it. Why? Because they Antifa (and ridiculous trolls like White) who, unable to mind their own business, make it their business to ruin the lives and careers of others. In addition to the protection from being punched offered by the sheer geographic range of the Internet, the Anti-SLAPP laws allow trolls like White and members of Antifa to thrive in a consequence-free environment. When considering the era in which they lived, this type of environment was clearly not what was intended by our founding fathers when they wrote the First Amendment. Alexander Hamilton learned better than most that his right to swing his fist ended at Aaron Burr’s nose.
Being a lawyer, my initial theories concerning the resolution of this problem involved suing the trolls. In fact, a rough draft of this article to advocated for a law that would allow a person to sue and win damages against individuals who interfered with their employment. Although I do believe that the continued constitutionality of existing torts concerning invasion of privacy would provide a solid foundation for such a law, it would ultimately be a disaster. First and foremost, such laws would be as worthless as common law defamation torts (like libel and slander) are today when considering that they would be subject to already-existing Anti-SLAPP statutes. Second, such a law assumes that trolls and Antifa have non-exempt assets from which a judgment could be paid when, in reality, most of them are unwashed, broke, and living in their mother’s basement. Lawsuits against people with nothing to lose and little ambition to better themselves serve only one end: the financial enrichment of the lawyer.
I ultimately arrived at a workable solution to this problem while I listening to a remarkably boring online CLE presentation in the shower as I enjoyed a cold beer. It truly is amazing how many ideas come to me while enjoying a shower beer. Anyway, as much as I would enjoy brining back dueling or tossing Anti-SLAPP laws in the trash where they belong, the solution to this problem involves targeting the very people who ultimately enable private censorship: the employers themselves. Rather than laws which attempt (usually unsuccessfully) to navigate around the First Amendment and strict scrutiny, the easiest solution is found in employment law through regulating the hiring and firing practices of employers themselves. The following is offered as an example of what would be required to prove to win monetary damages in civil court against a former employer:
(a) The plaintiff was employed by defendant at will;
(b) The defendant terminated or materially reduced defendant’s employment;
(c) The reason for the termination or reduction of plaintiff’s employment was for conduct that:
i. Was not otherwise unlawful or tortious;
ii. Was not committed within the scope of plaintiff’s employment with defendant;
iii. Was not committed on the premises of plaintiff’s employment or with equipment or materials owned by the defendant; and
iiii. Constituted a lawful exercise by plaintiff of his rights under the U.S. Constitution or the Constitution of this state.
(d) The plaintiff was damaged by the reduction or termination of his employment.
(e) A successful plaintiff in this cause of action shall be entitled to recovery monetary damages in the amount of his estimated salary for 365 days after the date of his termination, treble damages, and reasonable attorney fees.
The most immediate push-back against such a law would come from the business lobby because it would mean a long overdue end to the concept of at-will employment. Such a law would require employers to once again understand that what an employee does after work is his own business and not theirs. I am sure that many employers would simply create employment contracts for their employees in an effort to avoid the law, and legislatures would be free to regulate such contracts in the same way that most are now regulating non-compete agreements – free of any First Amendment implications.
Would the regulation of employers, by making it difficult and costly to fire employees for constitutionally protected conduct committed off-duty, ultimately stop Antifa and Internet trolls. No, it would not. It would simply make their activities far less productive (if not entirely unproductive) and easier to justify ignoring. For conservatives, it would also be important to understand that such a law do a lot more than protect Proud Boys from being harassed at their place of employment by Antifa; it would protect liberal employees at well. It would end – or make very costly – nearly all terminations of employment for otherwise legal off-duty activities. Many don’t consider this to be controversial on its face until they realize that an employer couldn’t fire the gay guy who married his boyfriend or the woman who went out and got an abortion. Such cumulative effects of the law would be distasteful to some conservatives, and hence, cause them to fall from the category of “people who want to be left the fuck alone” into the category of “people who won’t leave them the fuck alone” through their own intellectual dishonesty.
In conclusion, I am also aware that this law would do very little to help the entrepreneur whose business or professional reputation is being thrashed online. While such concerns further illustrate the need for a change in how we look at the First Amendment in the information age, they are beyond the scope of this article. That is unless, of course, we wanted to bring back dueling. I certainly wouldn’t be opposed to that. Uhuru!
Jason L. Van Dyke is licensed to practice law in Texas, Colorado, Georgia and Washington D.C. He has been practicing in the areas of criminal defense, commercial debt collection, and real estate law for ten years. He is Sergeant-at-Arms of the Dallas/Fort Worth Chapter of The Proud Boys and lives in Crossroads, Texas. The views expressed in this article are general in nature and should not be used or construed as legal advice for any specific situation