Spencer, Jeff, and David debate free speech limits, starting with Holmes’ 1919 "fire in a theater" analogy and its murky application to cases like Trump’s January 6th claims. They clash over hate speech—Spencer argues non-fictional harm-promoting rhetoric should be restricted, while David insists laws target motives post-violence. The trio examines private platforms’ power, exposing Elon Musk’s selective bans and Meta’s lack of democratic oversight, questioning whether corporate gatekeeping undermines constitutional protections. Ultimately, they agree current censorship models fail, leaving free speech’s future unresolved but urgent. [Automatically generated summary]
The podcast would have a better name if they weren't all taken.
I'm Spencer, your host.
And I'm back again with Jeff and David for part two of free speech.
For us, it's only been a few minutes.
So continue.
It's still very raw.
Yeah.
This is good that there wasn't much of a break, that it's not like we wait days or a week or something like that to record the next one because it's just we pick up right where we left off.
That's right.
Fire!
We're running fire!
Great segue there, David.
So part two of this, as I mentioned in the first part of this, if you're just picking this up now and haven't listened to that, it might be a good idea to go back one episode and listen to the first part of our free speech where we talk about making the case for why it's a thing and why we really want it and all the good parts.
Because right now we're going to talk about all of its bad parts.
Why we're going to limit free speech?
Why is there any limitation at all?
Why is absolute free speech perhaps not a good idea?
So I've kind of divided this into, for me anyway, four different individual things, and we're going to go into them in order.
I'm not going to randomize them or anything.
This is the order that I picked.
And so this is the order that they go in.
So the first.
Such a dictator.
Don't we have the freedom to speak out and don't.
If you want to object to the order, you'd have to know the order first, though.
So please wait till after.
Right.
I'll air it, though.
I don't mind.
I'm not going to limit you.
I'm not going to censor you, David.
I'll censor Jeff, though.
All right.
Yes.
I will fight to the death to reserve my right to retroactively criticize you.
No, make your own podcast and criticize me.
Okay.
So first and foremost, this is the first notion that comes up is that I believe this is actually like it is, it's definitely been stated about, but I think it might even be part of the First Amendment is that you can't yell fire in a crowded theater.
First and foremost, this idea that you're allowed to just do anything at all with your speech, any speech at all, any word that comes out of your mouth is totally okay in every context, everywhere, is not accurate.
It's just not accurate.
If you cause harm to people, this, sorry, this speaks to a thing that I think is a general principle that should be relied upon in nearly every situation.
It'd probably come up again this podcast is that freedoms in general are always freedoms with limitations in that you are free to do things unless the things you do limit the freedoms of other people lower than the freedoms you have.
Your freedom to swing your fist ends at my nose.
Yes, yes.
It ends when it hurts another person.
It conflicts directly with the freedom that another person has to not have their nose hit by any other person.
And so when you have this example, the crowded theater, you have potential for harm when you run in there and yell emergency, fire.
It sounds like a really great prank, except that it might harm people.
And that's the problem.
It's not a problem because it's a prank.
It's a problem because it can cause harm.
Yeah.
And to put it into a little context, because I did look into this and listened to a podcast about it.
Credit to Pop Hat.
Used to be on Twitter, now on Mastodon.
He's a first, he's a lawyer, First Amendment, you know, well-known.
Should have been on the podcast.
Yeah.
And so Oliver Wendell Holmes wrote that phrase in 1919.
And in those days, fire in a crowded theater was very real because they didn't light the theater with electric lights, you know, and necessarily.
Some did, but they certainly weren't very good ones.
And there were cases of theaters catching on fire, not having the exit signs that we see today.
Not having the exit routes that we see today.
Because you don't want all sorts of extra back doors for patrons to sneak people in without paying.
You had one door in and a loading door out the back, and that was it.
So in a fire, people died every time.
And they didn't just die from the fire, but from being trampled to death.
Thus, you can't just yell it.
Yeah.
And so the interesting thing was that, so in part one, I talked about how, you know, free speech was hampered in terms of those even speaking out against the draft.
Well, this was one of those cases.
He said you can't speak out against the draft just like you can't yell fire in a crowded theater.
Now, we may look at that and say, wow, those two things are not at all the same.
And Holmes himself changed his mind on this.
Like he wrote this decision and then had further discussions with lots of people.
And over the years, I mean, he is known more for being a First Amendment supporter.
But in this case, with this often quoted statement, he was actually on the wrong side.
Well, I think that the idea was right, just he applied it in the wrong way.
I mean, and this is a perfect example of the fact that we can have all the all the ideas and rules we like.
If we apply them poorly, then they're not any use to us.
Yes.
You know, we have to be conscious of the situation we're in and what really is the rules we want to live by.
And we want the whole purpose of the U.S. Constitution and the Canadian Charter of Rights and Freedoms is that you have some chance of knowing in advance what the real rules are, that they're not shifting to nail you in some way as you go.
The goalposts aren't being moved, that we work our hardest to teach them to people.
We teach them in schools to everyone to make sure they know what the rules are.
And then when you break the rules, there was you can't use ignorance of the rule as a as a thing.
And so the rules should be succinct.
This free speech is just a little, it's a little nebulous in this way.
It's less, you know, there isn't a tight fence around just this idea.
It's sort of gray in some areas.
And so that's why we have to have some examples like this.
Don't yell fire in a crowded theater.
And it might be useful to point out, don't yell fire in a crowded theater unless it's actually on fire.
Right.
Yeah.
Like that's the part that, you know, if it's not really on fire, that's time to not yell fire.
Like if you're but like the first, the first sort of the North fence line that we're trying to draw around limiting free speech is if it can be reasonably proven that said speech has a solid chance of causing real harm, particularly harm to a vulnerable segment of society, then this is a point in favor of censorship Of that speech.
Well, that leads directly to the second point that I was going to say, sorry, that this is what Holmes himself moved on to was he then moved to promoting the clear and present danger test.
Okay.
Which that's also somewhat fallen by the wayside.
But like in 1969, so somewhat more recent, but still almost as old as I am ago, the Supreme Court, the U.S. Supreme Court, said that inflammatory speech, even speech advocating violence, was protected unless the speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Likely to produce.
Sorry, when did this law come into 1969?
69.
It wasn't a law either.
It was a decision, right?
Yeah.
Well, yes, became law after this decision.
Yeah, basically.
And so it's still.
So I can stand on the street corner in New York and say, fuck the police.
But if I stand on the street corner in New York and say, fuck the police to a group of people who are also similarly angry, and then we immediately go and flip a cop car, I've broken the law before we flip the cop car because I said fuck the police and it led to a violent act.
If they can prove that you had reason to believe that the violence would happen.
I mean, this is why so many people believe that Trump should be prosecuted because he incited the January 6th, you know, rioters.
And I mean, he was basically encouraging them to go after Pence, go after Congress.
And so that's where it becomes similar.
And it's also why people are saying, why hasn't he been prosecuted yet?
Now, we won't go into all of the intricate details of that, but that's the difference there.
If Trump had just said the election was stolen, that would be one thing, as opposed to what he actually did, which was inciting people.
Yeah, he used, well, he used misinformation.
He fomented that misinformation, created it, encouraged it, and then took those ideas to rile up a crowd and then march that crowd to the Capitol, claimed he was going to march with them, apparently was also going to try to march with them and was denied that idea by the Secret Service and then had to watch it all on television.
Yeah.
Yeah.
But all those details can be found elsewhere.
Weirdly specific segue aside, I believe Spencer was coming around to the point of the West fence that gets drawn around free speech, which would be if hate speech inspires a violent act, particularly a violent act against marginalized people.
Yes.
So like that's sort of, I guess, a more specific version of your does it cause harm?
Is does it inspire other people to cause harm on others?
Yes.
It's really difficult to do something like a prosecution based on this.
This is a notion that comes up a lot.
There was a movie once made called Quills.
I believe it was about the Marquis de Saad and his writings when he was in the insane asylum.
And they were all, you know, sexual fantasy stuff.
And one of the inmates who was of diminished intelligence attacked one of the nurses in the facility and they tried to blame it on him.
And he claimed that he can't be held responsible for every lunatic that acts out based on the fiction that he's writing.
So, first of all, he has a case because his work was overtly fictitious.
He wasn't intending it for it to be mistaken for reality.
And that's a very important point that when you write a work of fiction and you have, like, let's say there's a lot of Stephen King books in which there are racist people.
And these are works of fiction that depict people who are racist.
And at no point do we go to Stephen King and say, you know, you had a racist character.
You had a racist character and then there was racism in the world.
And we're going to hold you responsible for that racism because you portrayed a character that was racist.
The things he's putting are obviously fiction.
What's also true about Stephen King is he's not racist and he usually comes to a short and brutal end for those characters.
And that's another reason why that doesn't happen.
But the point still stands is that his is obviously fiction.
And when you write a fictional work that has violence in it, that's not usually a thing where we look at it and say, well, that's a, you know, we think that should be caused this.
But when you have a work that's not fiction, so this comes to things like pamphlets that are, you know, there are religious pamphlets that come out that are against gay and lesbian and bisexual transsexual people.
That's not fiction.
That's just not fiction.
And you're not even pretending that it's fiction.
And in some situations, you might even pretend that it is some level of fiction in order to get away with something, but it's really not.
And those things are hate speech.
They are encouraging other people to also hate.
And that's where the line really draws for me is, is it fictitious?
Is it meant to be fictitious?
And I mean, when you really want to cut this apple very, very, very finely, you also get comedy, which is less like fiction, but it's also not meant to be taken seriously.
I mean, but sometimes it is.
Yeah, but sometimes it is.
And so you have situations where you have comedians who say things that are on the margins and they're on the margins because they're trying to push the envelope and make people laugh when they do it.
And God help me, I've laughed at some incredibly, you know, some things that in other contexts would be just awful, but they were funny in the moment.
And then I moved on.
And so we have, we have this gray area.
This, this fence on the right side of hate speech, it's probably not a gray wall of China.
It's probably a lot more porous than most of the others because it's difficult to really define that because we have fiction, because we have comedy, because we have forms of art that are looking a lot like the sorts of things that people say when they're trying to really incite violence.
What do you guys think of that?
This whole idea that it's porous, this fence.
Well, and I think that's why, and again, we're not lawyers here, but I think that's why many pure hate speech laws don't work or don't exist or have been overturned.
If someone's out there saying gay people are bad, you can't arrest them for that.
But if someone goes and commits a murder while screaming horrible anti-gay slurs, you can, in some states, not all states, you know, there is an add-on for a hate crime.
And it's not the speech that was the issue.
It was the motive.
You know, they committed this crime because of this motive and that motive is clear.
So it's not, at that point, it's not a First Amendment issue, although some would say it is that, oh, you should just, no matter the reason that they murder someone, you know, we shouldn't take into account the motive, which is clearly untrue because the motive is always or usually taken into account.
Yeah.
And always.
Yeah, always.
Motive is always taken into account at a bare minimum as to the severity of the sentence.
So, all that stuff is admissible.
Thanks, lawyer Jeff.
Sorry, it's not myself.
My daughter is teaching me a great deal about the Canadian law.
She's in grade 11 law right now, and it's her favorite subject.
So, I'm getting a great secondhand education.
Well, get away you can.
So, like, our northern fence is a pretty solid like rock wall.
Like, if what you say can be proven to immediately cause direct harm to other people, then you can't say that shit.
And then, the western wall, I agree, is like kind of a ramshackle, rough-cut timber fence that's been like a couple of trees have fallen on it and it's weak in a couple spots.
Saying if it can be proven that it's hate speech, as in which we define as speech that could inspire, could inspire violent acts.
And the case law we have to support that is when it does inspire violent acts, you are guilty after the fact.
Your hate speech is not a crime until somebody actually inspires the violent act that you inspired them to do.
Well, I don't know how the law works, but here's how I like we're not, you know what?
I'm going to leave that part.
We're going to, I'm summarizing where we've gotten from.
I stopped myself so I have more content for the third episode.
Yeah, um, the problem with that one, like you said, is uh the bob and weave that demagogues can get around.
Well, it's just fiction.
I'm just talking there and I'm just telling stories.
I'm only here to entertain.
Yeah.
Yeah.
But the other thing is, is how nebulous that connection is between words and deeds, because what we're talking about is criminalizing language, which gets really dicey, really early.
Yeah.
So it needs this direct connection to a violent act or a cause of harm.
And you've got the defense of, well, how am I supposed to, how can I be held responsible?
And all I said was somebody's got to do something about those bastards in power.
How was I to know that lunatic was going to go and kill three senators?
Right.
Right.
So the one committing the hate speech crime has all sorts of avenues to argue his innocence or his distance from the crime, which is what makes it such a slippery thing to pin down.
Yeah.
Yeah.
The other issue we've got, I think, on the southern flank of this property is this freedom of reach thing that we discussed more last more thoroughly last episode, where demagogues and charlatans now have access to this immense megaphone to amplify what they're saying.
So that's actually going to, that's our third point here.
Yeah.
Yeah.
So I'm going to pass this off to David.
You have the conch, as it were.
Yeah.
And it is something that we mentioned a little bit in the first part about how technology can greatly overwhelm legitimate efforts to tell the truth.
And this brings up something, and I think we may have discussed it previously, which is, you know, the spreading of disinformation or misinformation, which goes to the concept known as Brandollini's law or the bullshit asymmetry principle, which notes that the amount of energy needed to refute bullshit is an order of magnitude bigger than that needed to produce it.
And it's similar to the thing that everybody has heard, which is, you know, a lie can get halfway around the world before the truth can get its boots on.
And that was before the internet, you know, that came on.
But we see this in so many topics most recently, or one of the biggest most recently is the COVID vaccine, where people have been lying about it, claiming that not only doesn't it work, which is untrue, but it's also harmful, which is even more untrue.
And if you're an average Joe saying this on the internet, I suppose you have the right to say it according to the law.
But that doesn't mean that the social media site owner has to allow it or worse, as in the case of Elon Musk and some others, amplify it.
So you've got that aspect of things of the, you know, Jeff, like you were saying again, the freedom of speech versus freedom of reach.
It's like nobody has to allow you to spread your harmful misinformation.
There have been studies showing that in the U.S. and also in Canada, thousands, tens of thousands of people died because of mis and disinformation about these topics.
And so I'm not making the connection that we were just making earlier.
Like if you say the vaccine is bad and someone doesn't get it and dies, that you should be held liable because I think that's just too thin a thread.
But if you're a doctor or a nurse or some other medical practitioner and you're saying it because you've decided that the anti-vax grift is better money than doing actual work, you should lose your license.
You should be struck off the rolls, whatever it is in whatever country you're in.
There are just certain things incumbent upon certain occupations.
And if you work in the medical field, you should not be spreading medical lies and get to keep your credentials.
You know, so that's one place where I'm sorry, I have to interject.
That's fine for maybe doctors.
But I think it's unfair to hold a working class career up to a standard of what you have to say to the public.
There is all kinds of hospital staff and nursing staff who disagree with management's preference on what they should have for a personal vaccination schedule outside of anything other than like, and I'm not just talking COVID.
I'm talking back when like flu shots started coming out every fall.
You know, it was voluntary because there needs to be a line for what you voluntarily put in your, like nobody can tell you what you put in your body.
That's got to be a hard line for personal freedoms.
I'm saying this coming from a position of someone who knows nurses personally and knows people inside the healthcare industry personally.
And there were protocols in place for this prior to COVID.
You know, if you didn't want to get the flu shot this season because you don't like getting flu shots and you believe in natural immunity or whatever, fine, but you are full PPE, your full mask and gloves at work every day because you might bring it in.
And it was recognized that that PPE was sufficient to keep the bugs at bay.
And so you were not mandated to get shit put in your body.
What David was just talking about was not only saying, screw that, you have to get the shot to work here or you're fired.
And we're seeing that get reversed all over the place.
Not only that, you have to also speak in support of it to anyone who asks your opinion because you're a healthcare professional.
Like for talking about like the bounds of free speech, that's a pretty far afield claim to make.
Together are these two ideas.
Can I just jump in here?
Well, let me respond because that's not actually what I said.
Okay, please clarify.
And first, and I'm sure that you were using the term loosely, but to say, you know, to call a vaccination the shit put in my body is, I think, a very inappropriate term.
It sounds like something an anti-vaxxer would say.
And maybe that's what your point was, that that was their viewpoint.
But I'm not saying that if I go to my doctor and my doctor says, eh, you shouldn't get this, that he should immediately be struck off and lose his license.
Now, do I think he should be saying that to patients?
No.
Have I heard cases of nurses and CMAs and others and even doctors saying that to patients?
Yeah, it has happened.
And it makes it very difficult when they spread misinformation.
I still think that should be dealt with by their bosses, just the same as any other thing.
Like, ah, you have cancer.
Don't worry.
We'll rub some essential oils on it and you'll be fine.
I think that doctor should lose his license, whether he's telling it to an individual patient or putting it on the internet.
And the same is true here.
But what I was talking about more was the real big promoters, the ones who are out there saying, I am a doctor and you should listen to me and watch this movie died suddenly because it is totally true when in fact it's been proven all over the place that it's totally false.
Yeah.
And so that's what I'm talking about.
Now, like I said, do I think that medical misinformation in general needs to be addressed?
Yes.
I mean, you can go to the Cleveland Clinic website and find all sorts of bullshit there.
And you wonder, why is this major, you know, hospital clinic promoting this?
But that's, you know, that kind of starts to go into different territories there.
Yeah.
So doctors have a license to practice medicine.
They're not freelance.
Yeah.
If they are freelance, they're not allowed to use the title.
The title comes with the license.
That's they are a licensed profession.
That's how they work.
They all take an oath.
They don't, you know, hilariously, Dr. House on the show house told someone once that it's not like they make you sign it.
And, you know, but they do take that oath.
They all take the same one worldwide, as far as I can tell.
And as far as I can tell, they genuinely believe that they shouldn't cause his harm.
But generally speaking, in order to keep the license, they have to have the malpractice insurance or they have to be covered by the malpractice insurance of the entity under which they work, the hospital, the clinic, whatever that is.
And they will have regulations.
They will have guidelines on what things they can use to treat something, what things they can't use.
They have a lot of leeway.
But here's a point that is important to make is that, and this might be a product of misinformation now, but it's a very fine line between requiring someone to say a particular thing and requiring them to not say a particular thing.
So Jeff said that he heard or something that some nurses were required to say that the vaccine is good.
I don't know that that's true.
I'm sure they're told not to say that the vaccine is bad.
And that's that the distinction between those two things is very slight, but it's very important.
And I worry immediately as soon as I say this that I sound like something that I heard from Jordan Peterson.
When he says that you can't force someone to say certain words, he is actually right.
I think the rest of his arguments are used poorly.
But when he says those exact words themselves, he is actually right when he says those exact words.
So you can be a nurse and be vaccine hesitant and you can be a doctor and be vaccine hesitant.
But the hospital is probably going to tell you that you can't encourage other people to do this, to have this activity, because it's important for everyone to understand.
They can make their own decision.
But if you're telling them, hey, if you get that vaccine, it's going to kill you.
That's a thing that you shouldn't say.
That's the equivalent of yelling fire in a crowded theater because you're putting them at immediate increased risk in an environment where that risk really exists.
And so that's what I mean: there's a difference between being forced to say the vaccine's good and being limited from saying that the vaccine is bad.
And that's that's it's a very fine line.
There's only a couple words between those two sentences, but they mean a huge different thing and a huge different outcome for our world.
So I think to make this kind of fit the theme that we've kind of built here with fences, I guess this would be more like the south fence, but I'm not sure it exists at all at this point.
Our technology here, as you say, what was it, Brandolini's Law?
Yes.
It's greatly magnified this notion that you can say anything you like.
And as long as people believe it, you're somehow a superstar on Twitter and Instagram and all these places.
And there's a great many people who have willfully steered into that to sell their goop or, you know, other homeopathic medicines, imitating doctors, essentially, is what many people are doing in the homeopathic world.
And David has a very hardline stance on homeopathy.
I have a severe stance on it, not quite as hardline.
If any of those ideas help, do them.
Just you're going to have trouble proving that they help.
To the best of my research, most of them have very little evidence that support them.
And so that's where I'm at.
Any idea that's actually better, we should do that, no matter where it comes from.
But you have to actually show that it's better.
It's not just a different idea.
Hey, this is a different idea.
Let's do it.
Because that's where all these homeopaths are with all the bad information they have.
I mean, I divide what I call the reality-denying ideologies into groups, and I kind of lump anti-vaxxers in, but there's a whole group underneath that with subcategories of all the different crystal healing and the and the once you say that the oils and there's people who heal with sound somehow.
And they're all trying to griff.
They're all trying to sell you something that doesn't help.
And when I had Lydia on the podcast, she was a pro at all these because she had tried them all.
And they all come back to, and this is not my own thought.
This is from Dr. David Gorski.
They all come back to a conspiracy theory.
Well, all of alternative medicine is a conspiracy theory.
What I mentioned at the time was that the conspiracy theory is the, for lack of a better term, red-headed stepchild that has to come along with it, because that's the only way you can justify the belief in all these things is with a continued belief that a large part of the world is lying to you, willfully lying to you.
Right.
Right.
Yeah.
And I accidentally used the word conspiracy or term conspiracy theory, and I don't like that.
It's conspiracy belief.
But yeah, I mean, you have to believe that the laws of physics don't apply if you're going to believe in homeopathy.
Jeff, is your mic working or have we lost you?
I was wondering why I was being so quiet.
Poor Jeff.
Hope he hasn't been trying to interject here.
Everyone's looking for messages, but I don't see any chat messages.
Okay, I think I'm good.
That's the good mic.
Okay.
So I don't know if we rolled over anything you were trying to say.
There's so many things.
I'm sure.
Yeah.
So many things.
Have your sense of.
And then I just figured that you were censoring me to limit my ideas.
Yeah.
So I just sat back and passively.
I wanted a demonstration of the theme.
That's right.
He actually muted you.
Yeah.
So we took a really long trip around the garden of that South fence there with a couple.
There is no fence.
I think we determined that there is no fence on the technology side.
It doesn't exist yet.
I think it's worth sort of throwing a lasso around it to focus all that stuff we just threw at the side of that barn into one cohesive point.
We'll put up an orange ribbon.
Which would be like the issues that we deal with sort of as a the south fence is about a judge is this this fence is not about putting a fence around free speech.
It's about delineating the reasons why it's a good idea to limit complete unfettered free speech.
And on that front, the south fence, I think, is very sound because it's an electric fence that shows us how frigging scary technology can be at amplifying hate speech or dangerous speech that needs to be limited.
And yeah, we had examples of why it might happen with the grifters, the snake oil sales, that kind of stuff.
But like we also need to talk about stuff like QAnon and the incel community, climate deniers, like these guys, a lot of these ones aren't necessarily selling something, but they're just as guilty because you can't yell fire in a crowded theater because you could very immediately personally be responsible for hurting someone now, right?
You can't say, hey, you should go and shoot your senator because you might inspire somebody to go and shoot their senator tomorrow.
Yeah, that's not fiction.
Yeah.
No, you can't say all immigrants from Mexico are worthless, degenerate wasters that are stealing all of our jobs because you're not necessarily going to inspire anybody to anybody, anything specific with that statement.
But if you say that to a big enough microphone, you can move the needle just a little.
But if you move the needle just a little to a whole bunch of people, by order of magnitude, you are just as guilty as motivating one person to punch somebody in the face.
Just making more targets.
I mean, you say you can't say it, but that's pretty much a Republican platform.
Yeah.
And also true is that it being a lie doesn't make it fiction.
And again, like, we're already way out of what's actually legal and what's not because it needs like when we get to sort of this tier of technology interacting with social freedoms, there's so many layers of government involved in it.
There is no cohesive law surrounding this.
And as we've said multiple times, we're not lawyers and we're not here to discuss what's legal.
We're here to discuss what we think is just.
Yeah.
Right.
Yeah.
So like on the front, on the frontier of justice, reasons why we would want to limit hate speech or limit free speech rather is if you say something that's even mildly hateful to a large enough audience or obliquely enough hateful to a large enough audience, you are just as guilty as if you tell one person individually to go and beat the shit out of that person over there.
Yeah.
And I think, you know, you brought up QAnon, and that's a perfect example.
You know, that whole conspiracy hinges around, you know, this idea, this insane idea that, you know, Democrats are running a child sex ring out of a pizza parlor in New York.
So what happens?
Eventually, there's someone who's lost enough marbles that he grabs his gun and goes to a pizza parlor in New York looking for the sex ring so he could free them.
Yeah, in the effort to save the children.
Yeah.
The best motivation in the world and the worst direction.
Yeah.
Yeah.
But it and again, I don't want to derail us with discussions of legalities.
This is another one of my interjections that I didn't get to make when my mic was malfunctioning.
Right.
Yeah.
The point that David made about people shouting for their right to free speech if they get locked out of Twitter or locked out of Facebook or whatever.
And defense justification that's being used is, well, sorry, Baco, but like that's not the government.
Nobody in public service is censoring you.
That's private enterprise.
They can do whatever the hell they want with the thing that they own, right?
Yeah.
And we sort of feel smug in pointing out that coup d'état legally.
But like, do we really want private enterprise as the gatekeeper of what does and does not get broadcast to the public consciousness?
Well, no.
Like, are we really, are we really that desperate for a moral compass?
No, that's not that.
We're going to leave that gatekeeper.
I'm sorry.
No.
That can't be it.
I'll fight with Twitter for the next 20 years if it keeps the government from being the ones who are the decider of what we're allowed to say and things.
Right.
Yeah.
Well, and that's the thing.
Now, but the government is still, the government is still somewhat.
So what, Jeff, what you said is mostly true because a private entity, Twitter cannot ban someone just for being black or being homosexual as the reason.
That would violate federal law.
Just the same way, you know, if you run a dining establishment, you can't pick someone out for those reasons.
Now, there's still revolving Supreme Court cases on whether you have to allow, you know, if you bake a cake, if you can turn them down, if they want a wedding cake for two men.
But I think, you know, the vast majority of people would agree that you shouldn't be able to make those restrictions.
So there is still government intervention at a point.
Well, yeah, but like the government intervention that's there is restricting access based on race, creed, color, and all the other stuff that's in the Constitution and the Canadian Charter of Rights and Freedoms as well.
And that's not what we're talking about.
We're talking about censoring people and restricting access for what they say, right?
Not who, not who they are.
We've established that as an infallible legal touchstone.
What we're wrestling with here is at what point do we restrict access to social media, social media to people based on what they say?
And I just wanted to raise my hand and point out that right now, the only moral compass we have is Elon Musk and Mark Zuckerberg, basically the media moguls of the 21st century.
And, you know, obviously for rent to the highest bidder.
So that's Elon would like to say that he was about free speech absolutism.
One of the first things he did was limit people in their ability to say bad things about him.
Criticize him.
Comedy.
Yeah.
Comedy.
Yeah.
And also, as we're recording this, just a couple days ago, a leaked memo came out that he ordered the banning of a liberal person from the media, you know, who had criticized him.
And he also banned several other media critics.
He banned some who just asked for a comment.
Like, we're writing the story.
We'd like a comment from you.
You're banned.
So I think it just, it all sort of points to the point that like the argument of, well, it's fine for your free speech to be limited on social media because that's private enterprise and they can do whatever they want.
So it's not affecting your constitutional or charter rights.
It's just, it's a fallacious argument.
It's difficult to apply evenly.
It's no, it's not difficult.
It's impossible to apply evenly.
Yeah, I wouldn't, I'll nitpick a little.
I wouldn't call it a fallacious argument.
I think there is definitely a reason to split the two because there are some people who will say the First Amendment demands that you allow me on Twitter.
No, it doesn't.
Yeah.
And I'm not saying you were saying that, just that there are people out there.
I do think that the market has sway.
Twitter lost a huge chunk of its advertising dollars when Elon came in and started doing the things he did.
Now, a normal company with a normal board of directors would see that and be like, holy crap, we can't do this.
And that's kind of what I expected out of Musk and am somewhat still expecting, I guess, that some of his investors at some point will be like, dude, you got to quit this.
And it hasn't happened yet in part because, well, he was the richest man until he bought Twitter.
Now he's the second richest man.
But, you know, he has this ability that almost nobody else has, that very few other people has, to just do whatever the hell he wants.
People could leave Twitter.
You know, there are other places people could go.
The problem is most of them aren't.
But I do think at some point, one of several things will happen.
Either some board of directors will be created.
He will actually hand it over to someone else and they will run it more like it should be run.
I don't know that I have all the answers to how a social media company should be run, but more like it should.
Or he will drive off so many people that it becomes a larger version of Truth Social, which failed.
Truth Social did.
And then there was a third one that now I've totally gone blank on.
But, you know, there are different options that either it succeeds or it fails.
Or I guess the third way is it just keeps going as it is.
But if it gets to the point where he drives off so many people, then he's, you know, someone else will rise.
You know, Twitter was not always the primary way of discussion.
Facebook was not always a primary way of discussion.
There was MySpace, you know, and then that got overtaken.
And then other things got overtaken.
And all these different things will pop up.
Now, do I think Mastodon has the ability to do that right now?
Even though a ton of people fled Twitter for Mastodon?
No, not really.
And that is the closest you will ever get to a true free wheeling social media because there is no big company behind it.
They are independently run servers.
They all agree to kind of work together to share messages, to share posts.
And if any owner of a server refuses to abide by what the other owners think is right, they get knocked out and they're out there all by themselves.
And so that is a more democratic way, I would say, of running things.
It's just most people haven't gotten to that point yet.
I mean, there are a lot who have gone to Mastodon.
I mentioned earlier how Popat, well-known person on Twitter, moved to Mastodon.
And a number of others have in the political realm, in the media realm, in the science and medicine realm.
But other realms, the more social realms, the realms where I am at least equally as active, if not more active, television, media, those people haven't moved because it hasn't affected them.
They're not having political arguments.
They're not having scientific debates.
I'm a very strange person on Twitter, you might say, in that half the time I'm talking about what some people see as silly stuff, like reality television.
And the other half of the time, I'm talking about very serious things like politics and science and medicine.
So if you follow me, you get a whole selection of these different things, whether you want them or not.
And I've had people tell me that.
I've had very right-wing people who like the show Survivor follow me and be like, well, you should just be talking about Survivor.
I'm like, well, you should stick it because you don't tell me what I'm going to talk about.
This isn't a product in which I'm selling.
Yeah.
Coca-Cola should stick to soft drinks.
That's true.
Yeah.
And so, you know, there are other times when I've made that decision.
If you go to my TikTok channel, it is solely television.
That's all it is.
Part of that's because of the way they run their algorithm.
But the point is that, you know, circling all the way back to what we were originally talking about, is it terrible that Elon Musk is the one running Twitter?
Yes, especially since he doesn't even have a board under him.
Zuckerboard, at least allegedly, has people under him who are supposed to be making these sorts of decisions independently.
I don't believe that.
Musk promised to and then promptly ignored his own promise because he's the world's second richest man and he can do that.
So I guess, you know, I don't want to, you know, jump into part three, which is solutions.
But, you know, Jeff, you're absolutely right.
It is still a problem.
Oh, did we lose Jeff's mic again?
No, I'm here.
Okay.
Okay.
Sorry.
I'm just gathering thoughts.
So again, to summarize around our southern electric fence, like because it's just a string that we pulled across there.
It's all it is.
It's not even.
And again, this is not the fence that protects free speech.
This is the fence that protects the argument for censorship.
And on that front, this fence is rock solid because it makes an excellent argument.
Technology allows us to vastly magnify our audience, which vastly magnifies the scope of harm that can come from dangerous, hurtful, or hateful speech.
Yeah, well put.
Whether that speech is selling snake oil and convincing people with, you know, end-stage cancer to try colloidal silver or homeopathy, or whether that is, you know, conspiracy theorists inflaming anti-immigrant sentiment, which bears no immediate fruit, but just, you know, generational change.
Just chaos.
All like, exactly.
It's dangerous.
And because it's dangerous, it needs to be filtered.
The problem is, and we'll get there with the big old shoulder shrug coming in episode three.
I can feel it.
It's coming.
Is what is a solution?
We don't know, but we know what we got right now sure doesn't work.
So, but I think it's important because we have run very like huge, long, loping trips around the garden with very specific examples of what we're talking about in both of the last two points.
Our fourth fence, that west fence, we need to dive into that because Spencer already has lots of editing work ahead of him.
Yeah.
Yeah, yeah.
So this fourth fence is my favorite fence.
So when you have delineated the fence, Spencer, I would like an opportunity with the conch, please.
Yeah, this will be the east fence because we already put up the film.
Oh, yes, yes, of course.
Yes, of course.
We have to keep track of which fence and build a fence in front of a fence.
That's what I'm here for to keep this on track.
We'll see how that works.
David, why don't you pick up the fourth item here?
So the fourth is a protection for the individual and society at large from the tendency of leadership to become tyrannical and overbearing.
And it gets back to really something that we've talked about several times.
Jeff, I think, brought it up originally, the freedom of speech versus freedom of reach, which is, you know, that the principle of free speech does not mean, like, if I say it, that doesn't mean you have to listen to me.
It doesn't mean you can't block me.
It doesn't mean I can't block you unless I'm a government official.
Not everybody has to listen to everything.
And it goes back to some of the things that we talked about already.
And this was where Jeff said, I think you're kind of creeping into the second part here.
And we were in that I have the right to criticize you.
It's not saying that you are, I am taking away your free speech because I criticize you.
If you say homeopathy is great and I say it violates the laws of physics, I'm not taking away your free speech.
Yeah.
That's the point of free speech is to challenge that.
If you think that it doesn't, if it doesn't violate the laws of physics, then you need to counter that with your own knowledge of how it doesn't, in fact, violate the laws of physics.
Right.
Right.
And so, yeah, I'll hand, Jeff, you had wanted to talk more about this.
Well, I think that the point I want to make on this fourth, sorry, is it our Eastern fence, Spencer?
Yes.
The Eastern Fence.
Yeah.
Is it's a good fence, that East Fence.
I believe Sarah Silverman said it as a brief segue, of course.
There's like you want to have a really hilarious read, punch in like woke media comedy on Google, and you're going to get all sorts of talking hits talking about how difficult it is to be a comic today because so much stuff is off limits and so many things are politically charged and it's so easy to get canceled and lose your job because you make one tasteless joke and you can be instantly raked over the coals on social media and be without a job.
Now, I don't want to put out any personal opinion on that one way or the other or drag the discussion in that direction.
Just use it to sort of focus a beam on a quote by Sarah Silverman that I thought summarized the ethics of it rather succinctly.
She said, comedy should punch up, not down.
So like, check your joke.
And if you're making fun of somebody who is above you on the social scale, politically or economically or culturally, then that is clean comedy.
That's good clean fun because you're making fun.
You're ridiculing authority.
And that is one of the core jobs of comedy.
Like right back to the old court jester days, the one guy who's allowed to say whatever he wants and not get hung is the court jester.
So the king can hear all of the opinions, even the unpopular ones.
But that's the point of comedy is to make fun of authority.
When comedy is making fun of the oppressed, it's not comedy.
It's bigotry.
Yeah.
So like one of the big purposes of free speech, of our ideal, we've almost never experienced as a society, but the idealized idea of a free and open media is to criticize authority to prevent authority from becoming tyrannical and overbearing.
Right.
Right.
It doesn't give you the right to make someone listen to you if you happen to be, you know, a fringer who doesn't like all these, you know, lefty woke pricks in power and you want to drag somebody over to your end of the conversation and tell them all the reasons why.
Yes, we all have the personal right to say, I'm just not going to listen to you.
You know, keep scrolling, buddy, right?
You don't like what I'm saying?
Keep scrolling.
But I think that's sort of, again, like leaving it in the hands of private enterprise.
That's a weak moral touchstone to leave it up to the individual consumer, right?
Yeah.
You know, like, I'm just going to stand on a social media mountaintop and scream that all people of color are bad.
If you don't like it, just keep scrolling.
I haven't committed a crime.
Well, yes, actually, I have.
I really have.
Right.
So I think I'm going to cut this pretty much right here.
Yeah.
I think we're, we are, as three people, primed to go right into this next bit, which is we've already talked about a couple of times and curtailed ourselves, censored ourselves.
It's no good.
We need free speech.
So let's go right into episode three here and talk about what we're going to do about it.
That'll be next.
So I'm going to be the first one to shrug my shoulders.