By Marc J. Randazza

The NFL says that players must stand (or remain in the locker room) during the National Anthem. No more "taking a knee." In the same week, Trump lost a case that says that the "interactive space" in his tweets is a "public forum" and thus he can't block people who criticize him. And, perhaps I did too much LSD in the 80s and 90s, but I see the two as intertwined. The real problem we have is that freedom of expression is the crown jewel in the American enlightenment, but that jewel is tarnished by the fact that our public square is increasingly privately owned. Privatization of the "public square" threatens to render the First Amendment meaningless.

We gotta fix that – or the First Amendment will only really exist in a few tiny spaces — "free speech zones" surrounded (literally or figuratively) by fences to keep the nasty stuff inside.

The NFL

The whole "take a knee" thing needs little explanation. Starting in 2016, some NFL players protested racial inequality in policing by taking a knee during the national anthem before games. The protests began with San Francisco 49ers quarterback Colin Kaepernick who initially sat during the anthem. He then had a talk with Nate Boyer, a veteran and former NFL player, who convinced him that sitting during the Anthem was disrespectful. However, the two agreed that taking a knee was a more reverent way to get the same message across.

Personally, I find the whole thing rather ineffective. Take a knee, don't take a knee. Nobody ever changed their mind about how cops behave or racism or anything over an NFL player taking a knee. But that isn't the test for whether the speech has value.

I may find the protest foolish, but I respect the hell out of Kaepernick for doing it. I support any player who wants to do it. If there's one thing that is supposed to differentiate the USA from the rest of the world, it is our purple-mountains-star-spangled commitment to freedom of expression. The second most patriotic thing we have is the National Football League.

Don't start with me with baseball, a boring ass adaptation of a crumpet-eating fairy-assed game from England that is primarily played by Dominicans. Basketball?* Yeah, we invented it, but at its core it is a stupid game. Sure, we're the goddamn best at it, and unless we're playing it against the Croatians, we're going to win 101 times out of 100. The Canadians may have a "football league," but it would more appropriately be called the NFL's recycling bin. No other country even tries to compete with us in football. It is America's game. So it goddamn ought to reflect American values, as best it can.

Allowing protest and dissent ought to be ingrained at a chromosomal level if you think that you're amber-waves-of-grain entitled to wave the red, white, and blue.

So fuck the NFL for this policy.

And let me slap you across the face right now if you're starting with a comment like "well actually the NFL is a private employer, so it can have any policy it wants." This morning, I downed an entire mug of espresso, and 10 minutes later I took a huge shit that knows more about Constitutional law than you and your entire family ever will.

This isn't about what the NFL can do, it is about what it ought to do.

And dammit, the NFL ought to let its players take a fucking knee if they want to.

I will go get that shit out of the toilet and throw it at you, as if I were a caged chimp, if you start with the "oh, the NFL policy is just like Nazi Germany!" If that's your view, then correct it in the next 3 minutes, or you get sterilized when I am dictator. No, no, no, no, you fucking imbecile. Sure, Trump has expressed his view that you should "get out of America" if you don't stand for the anthem. That is a dumb-ass-moron position. But, it is hardly the government extending its hand down and pressing on the scale.

Do you think NFL players should shut up and do their job? Ok, fair enough. But, what makes you think that an NFL player can't be a voice of moral leadership? Remember Chris Kluwe? Back before it was cool to say you were in favor of gay rights, Kluwe had the balls to stand up and voice his support (I respected him for that). Did it matter? I think it did. Kluwe doesn't say much now, except for stalking articles about me, whining about who my clients are. Whatever, Kluwe, start shit with me and I'll just have my friend, Mercedes Carrera, intellectually kick your ass again.

But back to the subject at hand: If you think that the players ought to shut up and do their jobs and keep politics out of football, then lets try that.

No, lets really try that.

In 2015, Arizona Sens. Jeff Flake (R) and John McCain (R) revealed in a joint oversight report that nearly $5.4 million in taxpayer dollars had been paid out to 14 NFL teams between 2011 and 2014 to honor service members and put on elaborate, “patriotic salutes” to the military. Overall, they reported, “these displays of paid patriotism [were] included within the $6.8 million that the Department of Defense (DOD) [had] spent on sports marketing contracts since fiscal year 2012.” (source) (other source) (other source)

The NFL took millions of dollars in propaganda money from the military. So the WHOLE FUCKING THING is one big ball of political propaganda. At least the kneelers are honest and open about it. You fucking rubes who stand up during the anthem don't even remember that it wasn't even a thing until 2009. And, can someone remind me who was president during 2011 and 2014 when we were shoveling barrels full of taxpayer dollars into the pockets of billionaires to make sure that the uneducated slobs in the stands were sufficiently reminded of the message that "America" means bombing the living shit out of people thousands of miles away?

So lets put a pin in that… millions of taxpayer dollars flowing toward the NFL for propaganda purposes. And lets add in the billions that the NFL and its teams get in taxpayer subsidies.

Twitter (and all of Silicon Valley) – the New Censorship

After the 2016 election, the Left freaked the fuck out. Quite honestly, none of us thought Trump could be elected. And the morning after, the Trump derangement syndrome set in. Nowhere did it set in more heavily than in Silicon Valley. So, the platforms immediately got to work making sure that they did their part to ensure that we would have a "blue wave" washing away our sins. They got to work banning anyone perceived as "alt-right." It started with literal Nazis, and then it continued to those who might associate with them, to others who simply harbored conservative views. All of this was under the opaque guise of "safety."

It was all bullshit, and we all knew it. If you didn't know it, you were willfully blind.

I don't have a lot of love for Richard Spencer's speech. I don't even like Andrew Anglin's speech, and I'm his goddamn lawyer. I do like Milo Yiannopolous, but that's beside the point. The point is that they started with speakers that would be easy to ban — speakers who lots of people disliked. And they proved that there wasn't a goddamn thing we could do about it.

And very few people saw this as the alarming move that it was. But, as Twitter, Facebook, GoDaddy, PayPal, Stripe, etc. all got into line — shaving off a large percentage of right wing speech, the left cheered. Yay! Maybe we can win next time! Yay Resistance!

Go fuck yourselves — you're not a member of any "resistance" unless you just might get captured or killed — and you're certainly not part of any "Resistance" when you control most of the new public square, and you use that monopolistic power to shut down debate.

The fact is, Twitter, Facebook, and Google are the new public squares, and that gives them incredible power. And they are using that power exactly the way a power-drunk dictator would use it — to try and suppress speech they don't like. If you're on the Right, you bemoan. If you are on the Left, you're probably cheering it (just the opposite of the tribal alignment on the NFL issue). But, if you're on the Left and you're cheering it, you're also probably the kind of person who would let a rabid chimp out of its cage if you thought it would tear off your enemy's face — not realizing that it will also turn on you and rip your face off, and your balls, and then probably sodomize you as it ate the back of your head.

Because one day, the CEO of Facebook, Twitter, Amazon, or Google is going to want to run for president. And then, you fucking idiots, they'll have nothing stopping them from suppressing any and all speech that supports their opponents. You'll have the equivalent of Silvio Berlusconi buying power by owning all the private networks.

A few of us see this danger. That's why I volunteered to work on a case for Jared Taylor, suing Twitter for banning him. Twitter filed an Anti-SLAPP motion, and we just got our opposition in. (Complaint, Memo ISO Anti-SLAPP, Opposition to Anti-SLAPP). The case went pretty well so far – if you want to read the transcript, here it is. At least one judge found that the suit has some merit — at least enough to move forward.

Naturally, many have criticized the case — especially since there are many who find Section 230 to be something worthy of religious devotion.

Section 230, for the uninitiated, is a law that was passed during the Clinton administration, which gives Silicon Valley immunity from virtually all lawsuits based on content provided by others. This is why you can post something obviously defamatory on Twitter, and even if Twitter knows it is defamatory and knows it is harming you, it can, and will, say "Fuck you, See 47 U.S.C. § 230."

Now when the Silicon Valley giants said "Fuck you, Section 230" in the past, it at least had some semblance of philosophical honesty in it. Until recently, Silicon Valley loved freedom of speech. The whole promise of the Internet was that we were going to see an explosion of diversity of thought. For a brief period, we did. Some of it was awesome — and some of it was not. We got more porn, more humor, more political engagement, Mr. Spock Ate My Balls, and we also got racist websites, sexist websites, and every other kind of scoundrel online that we could think of. But, we all expected that the marketplace of ideas would flourish. I would like to say it did.

Then came 2016.

In the lead up to the election and in the aftermath of it, the Left lost its fucking mind. Campuses went into overdrive banning speech they didn't like, and Silicon Valley gleefully followed suit. And we on the Left, who once hated corporations and hated the control they might have had over the market, cheered. (I didn't, but as a Leftist myself, I have to accept guilt for my tribe's sins).

Might Trump's Thin Skin Save Us?

Trump is the first "Twitter President." It makes me want to bash my head into the wall to type those words, but here we are.

He got sued for blocking critics on Twitter, and much to my surprise, a judge in the Southern District of New York held that Twitter is a "public forum" — well, at least in part. You see, she couldn't bear to actually rule that Twitter is a new public forum. I think it is. My view is consistent with the old Pruneyard decision. Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). In that case, since the California constitution has an affirmative right to free speech, it could be interpreted as requiring private property owners to allow petitioning on their property, if it is a public space. This decision is not without its detractors. If you're a private property rights guy, you might hate this decision — because it does force a private property owner to allow speech it doesn't like on its private property. But, I think that if free speech means anything, it can't simply be the victim of progress moving the town square to an enclosed shopping mall, or even online.

The judge in the Trump case held:

we consider whether forum doctrine can be appropriately applied to several aspects of the @realDonaldTrump account rather than the account as a whole: the content of the tweets sent, the timeline comprised of those tweets, the comment threads initiated by each of those tweets, and the “interactive space” associated with each tweet in which other users may directly interact with the content of the tweets by, for example, replying to, retweeting, or liking the tweet. (Op. @ 41)

She had to rule against Trump. So, she created a new "public forum" limited to the comment threads in public officials' twitter feeds.

I think her decision is open to attack. I could see a pretty clean "Twitter isn't a public forum" decision. I could also see "Twitter is a public forum." But, this half-way decision is bullshit. Lets look at it this way: Twitter bans you because you make fun of Leslie Jones' face. Now you're banned also from the "public forum" of your President's tweets. If we were to analogize it, lets say there was a public park, designated for free speech activities. We privatize the area you have to go through to get into the park. The company that owns that area you have to go through just lets anyone go in and out. But, one day they decide that they just don't want to let anyone in who has ever been a proponent of legalizing marijuana, or who claims that there is a "wage gap," or who supports "Black Lives Matter."

Hey, it is a private property owner. Tough shit if they won't let you on their property. The free speech zone is there for you if you can maybe teleport into it.

So, the Trump decision is, perhaps, the crack in the wall. But, that leaves us with the NFL, and it also leaves us with the possibility that the 2d Circuit throws out this decision.

We have the power to break this

So what the fuck do we do?

The First Amendment is a wonderful thing, but what happens if the government just decides to give away all its public spaces to corporations and individuals who support its views?

Don't laugh… in San Diego, the government let a huge crucifix go up on public land in a clear establishment clause violation. Federal court ruled against the government, so the government "sold" the little circle of land that the cross was on to a private group. Private group then kept the cross up on its land. That was deemed constitutional by a three member panel of the 9th Circuit.

So how do we fix this?

How about the First Amendment restoration act?

"No private entity may receive any governmental funds nor receive any statutory immunity unless it agrees to be bound by the First Amendment as if it were a government actor."

Why not?

Imagine if the NFL had to choose between receiving taxpayer funds or allowing its players to exercise their First Amendment rights. Imagine if Facebook had to choose between Section 230 immunity and incorporating the First Amendment into its terms and conditions.

Imagine if the First Amendment got the shot in the arm that it desperately needs.

Are there problems to be worked out here? You bet. How would I apply this to the comments section here, at Popehat? Maybe that's a bit too small of an actor to be subject to this Act? I've run this by some smart people — one suggested having it only apply to any companies that might be publicly traded or federally or state regulated. That way we would have just the giants, banks, etc. That might work. [Add] Of course, the NFL isn't publicly traded, so that wouldn't work. Of course, giving out government funds is the easy part — who cares if you're publicly traded or not, big or small, NFL or the National Curling League?

When it comes to online platforms, I recognize that I'm 2800 odd words into this, and there is still some line-drawing to be done. But, just because line-drawing is hard, that's no reason to just throw the crayons in the river and say "too hard." It isn't too hard.

What we have now is a road toward disaster. Because these private constraints on public speech are getting worse, more opaque, and more restrictive. Power and censorship self-perpetuate. And, as the big tech guys own all our data and our public spaces, they aren't likely to give up control of the marketplace of ideas without a fight. Every day, they consolidate that power. If we don't do something soon, we won't ever be able to get a handle on it.

And then you'll be left with a First Amendment that only applies in the gazebo in your public park, on alternate Thursdays.

That isn't freedom.

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* I am informed that a Canadian actually invented basketball – fuckin' figures.

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