• Adam Schneider

FREE SPEECH OR UNLAWFUL ASSEMBLY?

14 January 2021


Last Wednesday, the more fanatical supporters of President Trump entered the U.S. Capitol, many of them voicing their intent to halt Congress's certification of the presidential election results.


These persons are labeled by some as protestors. Others call them domestic terrorists and insurrectionists. I have an opinion on the matter, but it isn't relevant to this article, so I'll just call them the GROUP.


The GROUP organized on social media sites, such as Twitter, Facebook, and Parler. Then they arrived at the same physical place, at the same time, and, many of them, with the same intent.


After the violation of the Capitol, efforts to organize further GROUPs in DC and in the state capitals has continued. It remains a question as to whether these gatherings will be peaceful protests or will become violent actions, as happened in DC last week. Yet, there is much rhetoric on social media that is promoting violence, of all sorts.


In response to the threats of violence on social media, technology companies have been suspending accounts, removing apps from app stores, and removing services from "cloud" infrastructure. For example, President Trump has been banned from Facebook and Twitter, as have many of his followers. Also, discussions that seem to be promoting the violence, such as "stop the steal" forums on Facebook are being blocked.


Persons all over the political "right," and even further across the political spectrum, from Democratic presidential candidate Tulsi Gabbard to German Prime Minister Angela Merkel, are questioning the correctness of removing Trump and others from social media. They ask if this is a violation of "free speech" rights. This is a fair question. I worry that it misses the point.


Social media is not merely a medium of free speech, where persons share and debate information and ideas. It is a virtual forum, a gathering place. As such, it can be more powerful than a physical meeting place because it can, in theory, gather every person in the world.


If a GROUP of persons assembled in your town square and began promoting the violent overthrow of your government, would you consider them to be exercising a right of free speech, or an unlawful assembly? State laws tend to consider assembly to be unlawful once it leans toward the planning of violent acts.


How do we want this principle to apply in virtual meeting spaces, where terrorist groups like al Qaeda and ISIL have long recruited their next suicide bombers using lies and manipulation? Social media is a gathering place, an organizing tool. Under what circumstances does this assembly become unlawful? Who has jurisdiction over these decisions?


Right now, such questions are merely being handled by Facebook and Twitter staff, which decides what is allowed based on its internally generated "rules." Free speech has never been a ticket to pure lawlessness. What then are society's "rules" to govern it? Do these rules change when the activities transition from the exchange of information and ideas to the assembly of purpose-driven GROUPs?


At a minimum, we must realize that free speech and assembly, both physical and virtual, are different activities, albeit related, and they have different consequences.