On Making Up The First Amendment

Screenshot 2013-12-16 17.59.30

This is a parody.

It’s not a very funny parody. Feel free to read through it, but it would be a waste of your time. There are five kinds of jokes:

  • oh noes men are being oppressed by feminists, this is reverse sexism
  • oh noes feminists are so loud and illogical and emotional and they will never get anything done
  • oh noes social justice language is weird and doesn’t make any sense to me ha ha ha
  • pick a stereotype hailing all the way from second wave feminism. yawn.
  • rape jokes

You know, about what you’d expect.

Users of Bitbucket have asked that the repository be removed for being harassing.

Cue the immediate misuse of the word “censorship.” (From Bitbucket).

 

Popehat has said everything I’d want to say about why people shouldn’t use this word in such an incredible stupid way.

when a business doesn’t want to give you a platform for your message, that’s only “censorship” in the most weak-tea sort of way; it’s only “censorship” in the sense that it is censorship for me to kick your nutter ass out of my living room because you’re frightening the kids and embarrassing me in front of the neighbors.

People roam around the internet thinking that the First Amendment somehow entitles them to say mean shit to other people. It doesn’t. The First Amendment is a right against the government, not against the whole world. The First Amendment is not the same as a private terms of service / community rules, neither in form nor in function. People like to assert the First Amendment and anti-censorship in order to cast legitimacy on a private enterprise arbitrarily picking and choosing which speech is valuable. But that’s not how it works.

Now note the longer response from Bitbucket:

We are aware of the repository in question and have decided to not take it down based on our end user agreement.

Our end user agreement (https://www.atlassian.com/end-user-agreement) prohibits content that is “obscene, defamatory, libelous, threatening, harassing, pornographic, racially or ethnically offensive, that encourages conduct that would be considered a criminal offense or give rise to any civil liability.” The repository content at issue does not fall into one of the prohibited categories.

While we want to encourage everyone (women and men) to use Bitbucket, we do not want to be arbiters of what is or is not offensive. If we take this content down, what other content will we need to take down because some find it to be offensive?

To avoid going down this slippery slope and be clear with you our users, we will remove content as required by law, meaning valid:

  • DMCA takedown requests
  • court orders

Is the repository harassing? It’s obnoxious and unfunny,  but I’m not sure it’s harassing. But then again, I’m cis, het, and have a pretty darned thick skin. If you want to argue it’s unacceptable, I’ll listen.

What I find incredibly obnoxious about this whole affair is that the response literally makes no sense. It begins with “We’re not going to take it down based on our end user agreement” and ends with “we will remove content as required by law.” Here’s the thing: the end user agreement as written has nothing to do with the law. No court can require BitBucket to remove racially or ethnically offensive material (hate speech is protected under the First Amendment, see R.A.V. v. St. Paul). And even if the other categories in the agreement are First Amendment exceptions (by the way, they are very limited exceptions), a court still can’t go after Bitbucket for hosting a libelous repository. Because, CDA 230.

The end result of this promise (not sure if a comment on a repository is going to be considered enforceable) not to take anything down without legal action is that nothing is going to get taken down. Which is all well and good, except the entire explanation is premised on “Based on our end user agreement / The repository content at issue does not fall into one of the prohibited categories.” In other words, this response is gibberish.

***

So what does this mean? It means you got a long quasi legalistic explanation from Bitbucket that boils down to “because we feel like it.”

***

The misappropriation of First Amendment language in the service of misogyny never stops. That’s the current zeitgeist of the internet, and every time it happens (this summer, it felt like the hits kept on coming, day after day), I am reminded of Rebecca Eisenberg’s account of the aftermath of the Harvard Law parody of feminist Mary Jo Frug, right after her murder:

The faculty agreed that the parody was “contemptible and cruel.” Students pasted fliers on the school hallways decrying the men who had written it. Professor Tribe likened the parody to “dancing on Professor Frug’s grave.” The civil rights community voiced their anger. A few of the faculty made a call to diversify the faculty. Professor David Kennedy called upon the administrative board to investigate charges of sexual harassment. Letters poured into Gannett House from all over the country. The phones would not stop ringing, even at my home. Soon the counterattack followed: Alan Dershowitz and the Federalist Society urged that we remain true to our “first amendment principles.” The Revue degenerated into a battle between the free speech absolutists and their so-feared “PC police.”

***

Here’s the thing about “First amendment principles”: they’re whatever you think they are. There’s a body of caselaw around that describes the exceptions to the First Amendment, and a lot of them just don’t make much sense. Not to mention, at least one is literally dependent on collective personal feelings (obscenity as measured by “community standards”; Miller v. California).

When you export the First Amendment out into the public sphere and try to apply it beyond just a right to be free from government censorship, the exceptions fall apart or become too hazy to use. (Not to mention, half of them are pretty awful and no one likes them anyways. See, e.g., all the campaign finance cases.)

If you want to apply “First amendment principles,” you have to make your own decisions about what kind of speech is valuable, and where to draw the line. Referencing the law and the courts without any justification for applying their rationale isn’t going to cut it. It’s a lazy appeal to an authority that doesn’t govern in this instance.

This is about you and what you think should be protected. And your choices reflect on you.

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