Who the hell made Ted Cruz the arbiter of speech in his own home?

Am no fan of Jones — among other things he has a habit of repeatedly slandering my Dad by falsely and absurdly accusing him of killing JFK — but who the hell made Facebook the arbiter of political speech? Free speech includes views you disagree with. #1A https://t.co/RC5v4SHaiI — Ted Cruz (@tedcruz) July 28, 2018

I demand the right to enter the Cruz residence and insult his family repeatedly, with no way for him to make me leave. (Heck, as Ken White says, insulting his family might earn me Cruz’s endorsement.) Or maybe a left-wing group should demand the right to camp out in Chick-fil-A and holler slogans at the staff. Would Cruz support management’s right to remove and ban those protesters from the premises?

I think he would.

You might read his tweet and say that he isn’t making a legal point, rather more of a moral one. Sure, Facebook might have the legal right as a private company to ban Alex Jones but morally, in the name of protecting free speech, they ought to leave him be. Okay, but (a) that “#1A,” i.e. First Amendment, hashtag in Cruz’s tweet ain’t there by accident, and (b) even if there were a bona fide First Amendment issue at stake here, Jones is a bad case on which to make it. He’s being sued right now, not implausibly, for a particularly gross form of alleged defamation. The videos that got him banned (only temporarily!) from Facebook apparently involved him accusing Bob Mueller of covering up child rape, followed by this:

“I look at that guy, and he’s a sack of crap. That’s a demon I will take down, or I’ll die trying. So that’s it. It’s going to happen, we’re going to walk out in the square, politically, at high noon, and he’s going to find out whether he makes a move man, make the move first, and then it’s going to happen,” said Jones, miming shooting a gun.

Defamation isn’t protected by the First Amendment. Neither are true threats. You’d have to stretch a long way to interpret Jones’s shooting gesture towards Mueller as a true threat, but anyone who spends time on political websites knows that the surest way to get banned is to leave a comment threatening violence towards someone, even if there’s obviously no real intent to act behind it. Why does Cruz have a problem with Facebook’s (actually pretty lenient) handling of Jones when Jones’s type of invective would get him booted straightaway from virtually any other website on the Internet?

Here’s a theory about Cruz’s tweet:

Cruz's strategy pre-2016 was to court conservative activists with his anti-ObamaCare/Obama stunts like shutting down the government/his filibuster. It blew up when Trump totally changed the game and outmaneuvered him. He's betting this is the new path to go with. It's not dumb. — andrew kaczynski (@KFILE) July 28, 2018

Right. Cruz is taking up Jones’s cause a week after he called for director James Gunn to be investigated and potentially prosecuted for the various tasteless pedophilia jokes he’s posted on Twitter over the years. Both are causes celebres for the righty populists Cruz is trying to ingratiate himself with. It may be that he’s worried enough about his race with Beto O’Rourke this fall that he thinks he’ll need all right-wing hands on deck at the polls in November to hold onto his seat, in which he’d better do a little extra pandering to the Infowars audience. Or, as Kaczynski suggests, it may be that Cruz is playing the long game, mindful that populists view him warily after he refused to endorse Trump at the convention in 2016. He’s got to make it up to them somehow ahead of 2024 now that it’s clear that Republican populists don’t much care about small government or “constitutional conservatism” or any of the other Reaganite stuff Cruz is known for preaching. He’s repositioning here in real time as a populist culture warrior. That’s the most charitable explanation I can concoct to explain why a brilliant constitutional lawyer is tweeting “#1A” about Facebook banning someone.

Unless, that is, he thinks Facebook should be treated as a public utility. Does he? If not, give him time. Populist avatar Steve Bannon has already reached that conclusion, presumably angling to prevent social media companies with unusual public reach from trying to freeze alt-righters wholesale out of their platforms. If supporting soft nationalization of private companies is a litmus test for the 2024 nomination, what would you bet Cruz will do?

By the way, if you don’t like the Chick-fil-A analogy up top, here’s one that’s less hypothetical: Would it be a “#1A” issue if the NFL decided to take Trump’s advice and ban players who kneel during the national anthem? I’d say no — and so would around 99 percent of the people high-fiving Cruz for his Facebook tweet today, even though the case for standing up for free speech as a moral principle is obviously stronger with respect to the kneeling NFL players than it is with respect to America’s most famous conspiracy theorist. Legally, though, I’m not sure how Cruz or anyone else would go about distinguishing the NFL situation from the Facebook one. You’d have to make the move Bannon did and argue that it’s a question of reach: Facebook is so humongous, its reach so incredibly long and influential, that being taken offline there is like being forcibly removed from a modern public square. People need extra legal protection from having it happen to them. The problem with that argument is that Facebook, for all its power, isn’t the only online media game in town. There’s Twitter, there’s Snapchat, there’s the Google/Youtube behemoth. More importantly, there’s private online publishing, a venture at which Alex Jones excels. His websites enjoy a huge following, enough to make the president of the United States a willing interview subject. If Facebook barred him for life, he’d still be a media force via his own website. If the NFL barred Colin Kaepernick for life, where would he go to be a force in football? The CFL? The arena league? C’mon.

Update: A Twitter pal suggests that Cruz’s tweet is related to a claim he’s made before, that in order for Facebook to be immune from liability for user-posted content under Section 230 of the Communications Decency Act it has to remain a “neutral public forum.” If it’s moderating content in a “non-neutral” way then its liability goes bye-bye. I don’t see how that bears on his First Amendment point, though — unless Cruz is claiming that the CDA has already made Facebook a sort of public utility — but do note that plenty of lawyers believe he’s flat wrong in reading the CDA this way. Start with these pieces at EFF and TechDirt, published when Cruz grilled Mark Zuckerberg at a Senate hearing earlier this year. This reddit analysis is also thoughtful. The CDA unquestionably *does* let platforms moderate certain types of content:

(2) Civil liability: No provider or user of an interactive computer service shall be held liable on account of— (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected

If Cruz thinks Facebook’s temporary ban on Jones isn’t covered by the “objectionable” catch-all, I can only assume he believes the only reason one might not want content by Alex Jones on one’s platform is partisan bias. Which would be an interesting comment on where populist politics stands right now, even at the Senate level.