Presidential candidate and Sen. Kamala Harris recently* called for a ban of Pres. Donald Trump from the platform Twitter. In an open letter to Twitter CEO Jack Dorsey, she referred to several of Trump's tweets as "blatant threats. We need a civil society, not a civil war...Others have had their accounts suspended for less offensive behavior. And when this kind of abuse is being spewed from the most powerful office in the United States, the stakes are too high to do nothing. No user, regardless of their job, wealth, or stature should be exempt from abiding by Twitter's user agreement, not even the President of the United States."
Twitter's user agreement says that users "may not engage in the targeted harassment of someone, or incite other people to do so." Many of Trump's tweets clearly meet that threshold, as he has accused Rep. Adam Schiff of treason and the notorious whistleblower of spying, and that's just in the last few weeks. So there's no doubt that Twitter has grounds to ban the president. However, Twitter also takes into account the "newsworthiness" of accounts–i.e. they hold tweets to a different standard if they were sent by someone who is powerful and has a large Twitter following. Many people argue that this is ridiculous since it overtly holds the president to a higher standard.
"We need a civil society, not a civil war." –Kamala Harris
Yet they shouldn't ban Trump, and here's why.
In this post, I will talk about the original meaning of the phrase "shouting fire in a crowded theater" and explain how this applies to the dispute about whether to ban Pres. Trump from Twitter.
Shouting Fire in a Crowded Theater
When did this phrase come about? Supreme Court Justice Oliver Wendell Holmes originally stated that "the most stringent protection of free speech would not protect a man in falsely shouting 'fire' in a theatre and causing a panic." However, it's important to take a look at the case when this phrase actually came about.
During World War I, Charles Schenck and Elizabeth Baer, members of the Socialist Party, gave out fliers to draft-eligible men suggesting they not submit the draft. The fliers suggested that according to the Thirteenth Amendment, which prohibited slavery along with "involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted," it was illegal to force men to comply.**
Schenck and Baer were convicted according to the Espionage Act of 1917, which stated that it was a crime to "willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States." However, they claimed that they were exercising their free speech rights according to the First Amendment, and since the Constitution superseded other laws, the Espionage Act was unconstitutional.
"The most stringent protection of free speech would not protect a man in falsely shouting 'fire' in a theatre and causing a panic." –Oliver Wendell Holmes
The court unanimously held that the Espionage Act was constitutional. Justice Holmes delivered the majority opinion, comparing the distribution of fliers encouraging draft evasion to shouting "fire" in a crowded theater.
Who Is To Decide?
In my opinion, Schenck and Baer were completely justified in publishing their fliers, regardless of whether you agree that draft evasion is OK. They're entitled to say what they want to say, unless it has an unambiguous, direct, link to criminal activity.
In the view of author Christopher Hitchens, "it could be just as plausibly argued that the Yiddish speaking socialists, who were jailed by the excellent and over-praised judge Oliver Wendell Holmes, were the real fire-fighters - were the ones who were shouting fire when there really was fire in a very crowded theatre indeed, and who is to decide?"
Twitter Has Free Speech Too
The right to free speech doesn't mean that platforms like Twitter have a responsibility not to ban Trump. They can curate whatever community they want with whatever people they want and whatever opinions they want. But I think they should. I think they should aim to reflect diversity of thought and opinion, even when it may seem offensive at first.
Is it possible to defend the tweets of the president in a semi-legitimate way? Yes. It is. And many Congressional Republicans have done just this.*** That's why they should stay up.
Free speech ensures that the government can't silence you–but it doesn't mean that people have to listen. That said, Christopher Hitchens went on to say that "it's not just the right of the person who speaks to be heard, it is the right of everyone in the audience to listen and to hear, and every time you silence somebody you make yourself a prisoner of your own action because you deny yourself the right to hear something." I think that's about right.
"Every time you silence somebody you make yourself a prisoner of your own action because you deny yourself the right to hear something." –Christopher Hitchens
After all, how do we know whether there is indeed a fire in this theater? How do we know who history will smile on? It's our responsibility to expose ourselves to different viewpoints then our own. (That's why you're reading this blog, which I'm sure has starkly different viewpoints from your own.)
Condorcet's Jury Theorem
Marquis de Condorcet, the pioneer of the Condorcet voting system, theorized that when you have a sufficiently large group of people, or a "jury," then assuming each individual person has some small bias towards correctness, the majority will be correct. Condorcet's jury theorem suggests that we should often consider the group's collective opinions to be over our own.****
This doesn't really work in practice, primarily because of herding (example in the footnote).***** But the point stands, Sen. Harris, that we should value others' opinions, even when we disagree. After all, it's our duty to listen.
*When I came up with the idea for this post over a month ago, it was recent.
**One could also argue that the Fourteenth Amendment prohibits the draft since it grants "equal protection of the laws" and women were not drafted, thereby stripping men of their equal protection.
***The Trump team aired a very effective ad which played past footage of Joe Biden, Nancy Pelosi, Chuck Schumer, and other Congressional Democrats denouncing the Bill Clinton impeachment as partisan. For instance, during the Clinton impeachment, Sen. Schumer stated that "their hatred of the president exceeds their caring about this country and its people." I suggest you watch it. It's not just Republicans and it's not just Democrats. Virtually all issues have multiple legitimate opinions.
"Their hatred of the president exceeds their caring about this country and its people." –Chuck Schumer
That includes free speech, by the way. Kamala Harris and others are free to their opinions, and it's important that they express those thoughts too. Listen.
****Poll Shows That 95% of Americans Disagree with Condorcet's Jury Theorem
*****Imagine you're among 100 people each flipping a coin three times. You are told the coin is weighted and has 2:1 odds, but not to which side it's weighted. So it either has a 2/3 chance of turning up heads and 1/3 tails, or 1/3 heads and 2/3 tails.
Imagine that you flip tails twice and heads once. So you suspect the coin is weighted towards tails, but you're not super sure. (If the coin is weighted towards tails, this would have happened 3(2/3)(2/3)(1/3)=4/9 of the time. If heads, 3(1/3)(1/3)(2/3)=2/9. Therefore, the chance it's weighted towards tails is twice the chance it's weighted towards heads, and so you have 2/3 certainty it is biased towards heads.)
After this experiment, the 100 people are lined up, and you're second in line. A judge asks the first person which way they think the coin is weighted. They immediately respond with heads, as they flipped heads three times. (Again, we math, and they should be 8/9 certain that their thesis is correct.) The judge asks you next. Your trial would suggest tails, but after the first person said heads, you feel that heads is more likely. So you say heads. In fact, as everyone goes down the line, not a single person says tails.
In fact, the coin was biased towards tails. 2/3 of people got more tails than heads. But if you heard ten people say heads in a row, then you might assume your test was an outlier. Each individual person said the rational thing, but the group overall has came to the wrong conclusion.
Alternately, suppose everyone was simply asked whether they, personally, flipped more heads or more tails. Unsurprisingly, about 2/3 of people say tails, and 1/3 say heads. So in this situation, Condorcet's jury theorem holds up–since each person arrives at their conclusion independently of others. This data gives us perfect information about the potential bias of the coin, and we find that the coin is biased towards tails.
Unfortunately, the first situation is how it often works in the real world, and that's the main flaw with Condorcet's jury theorem.
(By the way, this example was from some Magic: The Gathering article I read, but I paraphrased it to be about coins so you wouldn't skip over it. I can't find the article, though.)