No, it’s not a violation of anyone’s First Amendment rights. It’s Facebook. They can make their own rules, and they have. When it comes to Kyle Rittenhouse, who wounded one and killed two in Kenosha, they made their rules.
By taking down links to pay Mr. Rittenhouse’s legal fees, the company is interfering with his ability to raise money for his defense in a way other criminal defendants might. The fact that the platform may only be used to declare Mr. Rittenhouse’s guilt, but not his innocence—though lawyers say the self-defense argument is plausible—could prejudice a jury pool in the high-profile case. One of America’s most powerful companies is effectively giving its official imprimatur to Wisconsin prosecutors’ case against a specific defendant.
The problem isn’t that the subject of Rittenhouse is off limits. It’s not. And as for refusing links to give money to his defense, it’s not their job to allow their site to be used to facilitate other people’s fund-raising, although a criminal defense is a right that some might believe worthy of some extra support. And no doubt it would have been, had it not been Rittenhouse, because he’s hated as a right-wing killer and anyone who would help a right winger has to be a white supremacist or at least Nazi-adjacent.
But Facebook will allow you to write all day about what an evil guy he is, how guilty he is, how he killed wonderful people who were there to promote equality, goodness and all other wonderful things. They just won’t let anyone disagree.
Can you support due process for bad people? Can you have a meaningful discussion of how the law of self-defense works even when it might inure to the benefit of a bad person? Can you even sort out the facts about what happened when people conveniently misrepesent them to conclusively prove just how guilty Kyle Rittenhouse is?
Not these days. Not on Facebook.
Defending Mr. Rittenhouse’s right to a fair hearing, and the public’s right to see information about the shooting, is not a defense of the teen’s actions. The untrained minor exercised terrible judgment in leaving his hometown to act as an amateur police officer amid the looting and arson in Kenosha, and he has been charged with illegal possession of a dangerous weapon.
Certainly the same due process we would demand for the guy we like charged with a crime we don’t despise at the moment should be afforded Rittenhouse, regardless of what evil thoughts might flow through his head. And, just to add more fuel to the fire, even the cops being tried for the killing of George Floyd and Ahmaud Arbery, the shooting of Jacob Blake, deserve to be afforded a defense and due process. And even the opportunity to discuss whether they are guilty, and, if so, of what. Every accused deserves this, but even the Wall Street Journal can’t quite bring itself to say so.
Yet Facebook is lumping Mr. Rittenhouse with terrorist extremists like the 2016 Orlando or 2019 El Paso mass shooters. Video evidence shows this was a tangled situation.
While there are no “tangled situations” anymore on social media, but merely tribes slipping into their roles of spewing outrage directed at whomever it’s supposed to be, even “terrorist extremists” deserve fair trials. But say that and gird your loins for the outrage. You must be a terrorist, or at least a terrorist lover, because no one else would defend their rights.*
Is Rittenhouse as bad, or even half as bad, as these “terrorist extremists” about whom censorship is entirely acceptable? Beats me. I have no clue what was happening inside his head, though it seems likely that he made the misguided trip to Kenosha with a rifle for bad reasons.
But regardless of how bad his wrongthink, whether real or imagined, no defense of his actions, whether legal or otherwise, can be heard on Facebook.
Facebook naturally wants to dissociate itself from street violence, but in this case it has made a mistake. It can continue to block incitements to violence, and shut down groups plotting violence, without throwing itself into a murky and politicized criminal case.
Facebook has every right to shut down any conversation, any subject of discussion it wants. It has no liability for doing so, and shouldn’t. The issue here is the choice made, not the right to make the choice. Whether it’s because Facebook deems any discussion supporting Rittenhouse too “inciteful,” or whether it just doesn’t need to be attacked by the swarm of gnats for tolerance for allowing White Supremacists to speak, is unclear. Whatever Facebook’s motivations, it has made its choice. It’s fine to hate Rittenhouse and condemn him as guilty. It’s not fine to express any thought to the contrary.
Unlike others, I don’t blame Facebook for the choice it made. Its choice was in reaction to the demands of its users, and possibilty for the protection of its advertisers given the woke’s inclination toward secondary measures, harming those who are connected to those they hate.
But if this is a reaction to the outrage of users, and the users’ outrage is directed at an accused’s guilt being debated and an accused being afforded due process and a fair trial, based on whether the accused is on the good guy or bad guy side of the woke ledger, that’s the root of this authoritarian problem. Facebook is merely the vessel, a cowardly vessel but just a vessel, to carry the water of the woke.
It’s easy to hate Rittenhouse for being a white supremacist who killed people protesting for equality, whether that’s what it turns out to be or not. It’s easy to understand why Facebook might make its choice in the face of the current outrage. But from presumption of innocence to due process, to even the discussion of innocence, it’s hard to see the rights being sacrificed and undermined to reach the mandatory condemnation by the woke of the people they hate for the sake of equality and justice. Their justice.
*A few days ago, a twitterer announced that he had hacked the donations to Rittenhouse’s defense fund (no clue if it was true or just bravado) and called upon the minions of morality to let their employers know they had Nazis on their payroll.
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Side comment … I am pretty sure Facebook has a (new) fundraising feature. So they made it their job to facilitate fund-raising of some kinds.
Not being a FB user, I have no clue.
Donated $100 to his defense fund.
I would wait until I was sure that the defense fund went to defense lawyers willing and capable of defending him.
I’m confused by this comment. The defense fund is being collected and managed by his attorney, who (ironically for Facebook, which recently publicly called Rittenhouse a “murderer”) is the same fellow who won Nick Sandmann’s libel case against CNN. He seems both willing and quite capable.
No lawyer would be confused by my comment, or say Lin Wood won Sandmann’s libel case. Since this is a law blog, I would suggest reddit is more your speed.
I hear Pops has a tip jar. You should hit that up before saying something so pointless. I’m gonna throw money at BLM just out of spite, and poor Pops will run his blawg regardless.
That would almost be enough for a bottle of Bowmore 18.
Even if one were to accept that Facebook doesn’t have to allow fundraising for every shooter, or vocally support due process for all, I do blame Facebook for this decision, for at least two reasons: First, there’s (at least) a non-trivial argument to be made (one form of which appeared on this very blog) that this is self-defense, and in any event it’s obvious to anyone with eyes to see that this isn’t in the same category as Orlando or El Paso (or Charleston, to mention another idiotic comparison I’ve seen made).
Second, there’s a perception that Facebook (and the rest of “big tech”) has an anti-conservative bias. This decision will do nothing to reduce that perception–in fact, it may provide the strongest support yet to that perception. As such, it’s quite possible it will be bad for business.
Mark Zuckerberg is a gazillionaire so any fiscal loss over this is basically nothing to him.
Besides, I expect the people that would be upset over this action and leave have already left.
How many businesses do you see doing TV commercials about how unwoke they are?
The anti-conservative bias is a seasonal thing, which goes nearly Internet-wide as general elections approach. This is the time when “activists” devote all day, every day, to hunting for speech they can flag as abusive on every Internet platform that purports to have rules about user content.
He kinda looks like me.
One can dream, but with a different ending. (JK)
Sucks to be him.
Sounds like FB has decided to take up the job as host of the new feature “Two Minute Hate”. It is their website, and therefore their right to do so.
Can’t see how FB can have the right to say “We have designated this a mass murder” and thus logically Kyle Rittenhouse “a mass murderer”. Are there not libel laws against that? The press must maintain the presumption of innocence and that includes the contents of letters to the editor, or not?
Calling the act a mass murder isn’t the same as calling Rittenhouse a mass murder. It’s not a strong libel claim.
There’s no dispute that he shot 3 people, killing 2 and maiming 1, and that the rioters and the people who showed up to stop the rioters from destroying had political beliefs that played a part in why they were present that night. Facebook has an internal definition of “mass murder”, and these bare facts appear to be sufficient to meet that definition.
What is in dispute is whether the shooting was justified. Facebook doesn’t factor justification into its definition of a mass murder. Unfortunately, this isn’t something Facebook is equipped to nor wants to handle, because getting into the business of saying some killings are ok and some aren’t is more characteristic if something a government does, not a giantdata mining tech corporation that is looking to apply such data to connect people to other users and to advertisers. That’s not something they teach in a statistics, programming, or data analysis program.
The problem with the argument that Facebook is a private business and therefore should be able to regulate its own content is that it stands in intellectual tension with Facebook’s ability to take advantage of the provisions of the Communications Decency Act immunizing it from liability for the posts of third parties. Ideally, Facebook would be a private business and then subject to liability for what appears on its pages (perhaps subject to a safe harbor allowing them to take down posts after notice) or it would be a utility or common carrier and then required to make its pages available to all First Amendment protected postings.
It’s not an argument that FB is a private business. It’s just a fact. As for the rest of your comment, it makes no sense. You drank the green Kool-Aid instead of the red Kool-Aid.