By Robert Romano

In John Stuart Mill’s magnum opus, On Liberty, which provides one of the most compelling defenses of free speech in human history, the philosopher warned how a tyranny of the majority could impose censorship that would be “more formidable” than even governmental censorship and that it could “enslav[e] the soul” with little room for escape.

Mill wrote, “[W]hen society is itself the tyrant — society collectively over the separate individuals who compose it — its means of tyrannising are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates; and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.”

Are we in danger of a social tyranny on Facebook, Twitter and other social media, where members of the community are being singled out and silenced because they hold unpopular views?

A recent example that has garnered a lot of attention recently has been actor James Woods being suspended from Twitter. Woods’ apparent crime? He paraphrased Ralph Waldo Emerson’s famous response to Oliver Wendell Holmes’ criticism of Plato in 1875, where he warned against crossing giants: “When you strike at a king, you must kill him.”

Woods’ iteration was in reaction to the outcome of Special Counsel Robert Mueller’s report. That, after three years of investigation by intelligence agencies, the Justice Department and eventually, Mueller, no coordination or conspiracy by President Donald Trump, his campaign or any American with Russia was found.

Woods wrote in April, “If you try to kill the King, you better not miss. #HangThemAll.”

For the duration of the Russia collusion investigation, critics of the President have routinely gone on social media to pronounce that Trump was guilty of treason, a capital crime. The #TrumpTreason hashtag remains a popular locale to call the President a traitor.

It turned out to be a hoax perpetrated by the Democratic National Committee and the Hillary Clinton campaign, who hired via law firm Perkins Coie Fusion GPS and former British spy Christopher Steele to pen the allegations that Trump and his campaign were Russian agents who had coordinated the hack of the DNC and publishing the emails on Wikileaks.

But, apparently, if you suggest that those who pursued the false investigation of Trump were guilty of treason and should be punished accordingly, that can be a bannable or suspendable offense on Twitter. The #Treason hashtag includes a lot of posts like that, but also goes in the opposite direction and similarly declare the President a traitor.

The question is not whether or not treason should be punished by death, for it clearly is under federal law, 18 U.S. Code § 2381, which states “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death…”

So, if you declare that somebody is a traitor of the U.S., you are at least implying they should be executed. Let’s be clear. It is a capital crime. Woods was explicit. He thought the investigation into Trump, based on concocted evidence, was treason and should be punished accordingly. But, so what?

If somebody reacts to a murder and there is a prosecution, and that person were to take to social media advocating the death penalty for that capital crime, is that an incitement to violence, or a call for the rule of law to be vindicated? Or, what if somebody advocates for a war to be declared by Congress on a country in another instance, mindful that thousands or millions of people could die?

The point is it’s all pretty subjective. As noted above, it is extremely common in political discourse for opponents to accuse each other of being traitors. It happens a lot. Even if you think Woods was over the top, it does not seem to rise to any level that would merit a suspension on a social media platform. But that’s exactly what happened here.

If anything, that’s pretty tame in comparison to some of the stuff you see online that doesn’t get banned.

In a statement to the Daily Wire, Woods said, “Twitter demanded that I rescind my tweet paraphrasing Emerson. It now seems they have chosen to delete that tweet from my account without my permission. Until free speech is allowed on Twitter, I will not be permitted to participate in our democracy with my voice.”

This is just one example, but it underscores the point that even though Woods had more than 2 million followers on Twitter that took years to build, utter the wrong words and that can come all crashing down. Your business and access to your fans can be cut off.

It is censorship, no question.

To be clear, it is not censorship by the government. Twitter is a private institution and is not bound by the First Amendment. But it is censorship all the same. And it is not something society has to take lying down.





Now, the White House is getting into gear and urging Americans to document instances where their voices are being silenced on social media at http://whitehouse.gov/techbias. The website states, “SOCIAL MEDIA PLATFORMS should advance FREEDOM OF SPEECH. Yet too many Americans have seen their accounts suspended, banned, or fraudulently reported for unclear ‘violations’ of user policies. No matter your views, if you suspect political bias caused such an action to be taken against you, share your story with President Trump.”

The reach of social media is undeniable. A Pew report found 68 percent of adult Americans use Facebook, or over 170 million. 24 percent use Twitter, or about 61 million. The ease of access on our phones and computers has made social media a go-to source for politicians, political parties, pundits, actors, companies and just about everybody to speak their mind.

In every way possible, social media is the “marketplace of ideas” that Mill and others championed. But now it is not upholding the spirit of free speech. Mill wrote, “Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development and, if possible prevent the formation of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own.”

Mill added, “There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism.” The question for Mill and us today is where that limit is and ought to be placed. Mill called it “the principal question of human affairs.”

Mill laid out his principle, which was that “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

Now, terms of service on social media platforms like Twitter certainly forbid imminent threats of violence, but they also tend to forbid wishing for physical or other serious harm on others, as well. So, in the Woods example, calling for traitors to be hanged or executed — even though that is a potential punishment for treason under the law — seems like it might run afoul of the terms of use. On the other hand the terms of service that Woods supposedly violated say that the threat must be directed at an “individual or group of people.” “#HangThemAll” may not be explicit enough to warrant a violation. It does not really pose any specific or imminent harm to anyone.

But let me add that even if Woods had said a specific individual, one of the persons who investigated Trump, for example, was guilty of treason and should be tried in a court of law, convicted and punished to the fullest extent allowable, which is death, I do not think it would merit a banning. For nowhere in such an example is he calling for people to take matters into their own hands and is instead calling for due process, even if the reading of the law is not necessarily correct.

If a line needs to be drawn, I’d suggest a specific and/or imminent threat of violence would be a permissible threshold to prevent harm unto others, such as outlined in the Supreme Court decision, Brandenburg v. Ohio, in which the advocacy “is likely to incite or produce such action.”

This may not be something government regulation under our system could really touch upon under the First Amendment. Private institutions like social media platforms need to police themselves. But in their dominant market positions, they have an additional responsibility to society to find, in Mill’s words, the limit of “legitimate interference of collective opinion with individual independence,” for that limit is “indispensable to a good condition of human affairs.”

And even then, we should be mindful that in politics, words can get heated sometimes. In the marketplace of ideas, sometimes comments will get deleted, and not at all consistently, and if it is unwarranted, individuals in that marketplace will respond.

Mill’s antidote was discussion. Perhaps instead of deleting Woods’ tweet, somebody should have debated with it, and said erroneous prosecutions are not treasonous per se, even against a sitting President. And then those who thought it was traitorous could respond, and there’d be a debate. No harm there.

If on the other hand, we move toward more censorship of political voices, there will certainly be more calls for regulation, especially if the push seems to be aimed toward a one-party system. In April 2018, Twitter co-founder and CEO Jack Dorsey retweeted an article by Peter Leyden and Ruy Teixeira that called our political discourse a “new civil war,” with Leyden and Teixeira writing, “America can’t afford more political paralysis. One side or the other must win. This is a civil war that can be won without firing a shot. But it is a fundamental conflict between two worldviews that must be resolved in short order.”

It called for “Democratic One-Party Rule” in the U.S. as a means of reconciling the nation’s challenges and implementing the progressive agenda.

Dorsey called it a “great read.”

Is that the direction social media is moving now, to silence its political opponents? To create one-party rule? Sounds pretty undemocratic. One-party rule is the tyranny of a majority or a minority, but it does not condone dissent.

These platforms may want to come up with an industry standard that airs on the side of discussion and is more consistent. It’s easier to enforce freedom of speech than it is to effectively monitor billions of communications for fouls. User tools allow individuals to mute others already and allow groups and pages to monitor and remove objectionable communications on their own platforms.

Republics, at their core, are fragile things. To survive, the freedom from political violence must be maintained. It is not something I personally endorse. Nor do I think the power of law should be used for political ends to go after political opponents. But I acknowledge that such factionalism is an implication of free speech, and I’d rather have free speech with factions and its calls for political prosecutions or accusations of treason than a regime of censorship that seeks to police it.

James Madison wrote of this in the Federalist No. 10, “There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.”

Madison continued, “The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government.”

So, too, must the freedom from being silenced be maintained. Facebook and Twitter will not cure us of faction, and if that is their intent, they should stop providing platforms to anyone for what they might do with it.

There’s a good balance here and banning “#HangThemAll” may not be it.

So, let’s try free speech. Debate is the solution. As Mill wrote, “If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.”

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.