I feel both fondness and respect for Cracked. I remember reading the magazine as a kid — it was number two or three to Mad, but it tried harder. As a web site, it's done good work in the realms of satire, fatuity, and social and political commentary. But like any institution it has a culture, and that culture has its weak spots. One example: the urge to write meandering make-everyone-dumber think pieces about "free speech."

I put scare quotes around free speech because Cracked seems to require its writers to blur the lines between free speech law and social norms surrounding free expression, and to address them in a way that obscures both. This week's example: "What Free Speech Doesn't Give You The Right To Say."

We're in trouble right from the start:

Freedom of speech is one of the cornerstones of our society, and it is absolutely a principle worth defending to one's dying breath. Unfortunately, complete assholes are also a cornerstone of our society, and will definitely be here until our dying breaths. And when the latter gets ahold of the former, they invoke it improperly and indiscriminately, like a toddler with a new word or a monkey with a shotgun.

We're in trouble right from the first paragraph. Aaron Kheifets invokes rights in the piece's title, suggesting a discussion of legal norms, but immediately bogs down with terms like "improperly" and "indiscriminately." Indiscriminately according to whom? Improperly under what standard? You won't find out in this piece; those are emotive reactions to speech, not attempts at legal or philosophically principled distinctions.

Kheifets' first point is that people crying "censorship" at content regulation at Reddit, Facebook, or Google are wrong. Just wrong. Why?

Does that mean the internet is abandoning our much-beloved free speech? Fuck no! It just means that the standards for free speech people use on the internet are finally catching up to all other forms of human interaction.

That sounds nice, but it's uselessly vague. Maybe Kheifets means "online businesses are starting to throw drunks and assholes out, just like your neighborhood restaurant would if you started shouting about lizard people." Or maybe not. His elaborations are incoherent:

First, I'd like to point out that there are a ton of things you are legally not allowed to say. The example everyone is familiar with is that you can't yell "Fire!" in a crowded theater (everyone will kick your ass for talking during Rogue One). But there are many more examples of things you have no legal right to spout off. You can't incite people to violence, you can't slander (in speech) or libel (in writing) someone, and you can't say things that would make any reasonable person punch you in the face, because them's fightin' words (though telling someone you thought The Force Awakens was a good movie is still technically legal, for some reason).

Here Khiefets finally references legal norms, but in a vague, misleading, and mostly useless way. These are all censorship tropes, invoked in a tropey way. The observation that some speech is outside the First Amendment is true but irrelevant and unpersuasive absent specific explanations of how particular established exceptions apply to particular speech. The "you can't shout fire in a crowded theater" bit is a reference to a rhetorical flourish in a subsequently overturned case that means absolutely nothing. The "you can't incite people to violence" observation is true but somewhat overstated, since the test for actionable incitement (whether the speech is intended to cause, and likely to cause, imminent lawless action) is narrow. And "fighting words" — if it survives as a doctrine — is restricted to face to face insults directed at a specific person. Most importantly, these legal doctrines are all irrelevant to the question at hand — whether private companies are involved in wrongful censorship — because internet companies aren't the government and their actions can't violate the First Amendment under the state action doctrine.

Onward we slog:

Yet despite it being completely illegal in real life, people think they are allowed to threaten and harass people online. Leslie Jones received a mind-boggling number of inflammatory and threatening messages on Twitter, and zero people went to jail. Contrariwise, if someone (say, I don't know, maybe a Cracked writer) organized people to make a bunch of prank phone calls to a radio DJ, they would for sure go to jail. Just ask Cracked writer and jail alum John Cheese.

Wait, wait, wait. This is too much whaarrbargl. Kheifets has just asserted that things called "threatening" and "harassing" online are "completely illegal" in "real life." Well, not exactly. Only true threats are outside the protection of the First Amendment. Many, perhaps most, threats are not "true" because a reasonable person would not interpret them as a genuine statement of intent to do harm. The law of "harassment" is more muddled, but suffice it to say that not everything you think is harassing is outside the protection of the First Amendment either. It's true that nobody went to jail for being assholes to Leslie Jones, but Khiefets hasn't established that anyone did anything outside the protection of the First Amendment, so the observation doesn't get us anywhere. Then Kheifets asserts that you would "for sure go to jail" if you "organized people to make a bunch of prank phone calls," and for that assertion cites an article by another Cracked writer who doesn't explain exactly what he did before he was arrested and doesn't explain what happened to the charges after he was arrested. In fact, organizing people to call (or crank call) someone might get you charged, but it's not at all "sure" that you'll be convicted or "go to jail." This is nonsense.

It keeps getting worse:

So just to be clear (and I can't believe this is a sentence that actually needs to be written), you aren't allowed to intentionally inflict harm on someone, even by just using words, whether via in-person chat, phone, email, Facebook, Instagram, telegraph, Snapchat, Tinder, smoke signals, singing telegram, carrier pigeon, words scrawled on a gas station bathroom wall, or even Reddit.

This isn't a correct statement of law. It's not even a correct statement of morality. It's absolutely allowed — and protected by the First Amendment — to do things that you intend to cause harm. For instance, condemning people for evil or stupid acts may cause them harm, but it's protected. Revealing true and shameful facts about them — Anthony Weiner, anyone? — may cause harm, but it's protected. The proposition that you aren't allowed to cause harm through our words — a popular trope of badly written cyberbullying laws — is not just wrong, it's a joke.

Kheifets finally gets around to something worthwhile and not entirely inaccurate:

If a comedian makes rape jokes and people don't like them, that isn't the audience censoring the comic any more than someone not liking a meal is censoring the chef. Nobody has to support anyone else's shit sandwiches.

Kheifets goes on in that vein for several paragraphs. He's right. People shunning you for your free speech is their free speech. Criticism isn't censorship. But it would be nice if Kheifets — having invoked and blundered around in the vicinity of legal norms — would point out the key one here, which is that only government action can violate the First Amendment.

Kheifets concludes with this:

Free speech is a vital part of a free society. Shouting racial slurs at people until they're afraid to interact with the world isn't. You aren't entitled to free, uncontrolled access to Facebook's servers. You're free to ride a horse, but you're not free to ride a horse into an IKEA — especially not a horse you don't own. And constantly crying "free speech" is beating that horse to death.

This, particularly as the coda to Kheifets' piece, is confused. I'm not sure whether he's saying that racial slurs aren't a "vital part of a free society" (arguably true but irrelevant to whether they are protected speech) or whether he's saying they aren't protected free speech (which, under many circumstances, would be incorrect). The horse thing is just incoherent. And Kheifets is the absolute last person to have any business berating others for inaccurate invocation of free speech rhetoric.

Seriously, Cracked. This is crap. Most of your columns about free speech are crap. They don't educate anyone. They promote confusion and ignorance about vital civic concepts. Why do you keep doing this?

Last 5 posts by Ken White