Congress, tech must work together to stop speech inciting violence

Congress, tech must work together to stop speech inciting violence

"Smokey and the Bandit," a 1977 road trip buddy comedy, followed the exploits of Burt Reynolds and Jerry Reed as they attempt to deliver a forbidden truck load of Coors from Texarkana, Texas to Atlanta in a ridiculously short amount of time. They devised a scheme in which Reynolds speeds ahead in his flashy black Pontiac TransAm as a decoy to distract the highway patrol (a technique called blocking). "The Bandit" then used a Citizens Band radio to send location information about "Smokey" to "the Snowman" so that the 18-wheeler carrying the illegal beer could blast through town and across state lines.

Forty-plus years later, Smokey and the Snowman ride again. Only this time they are armed militants with code names like "Baked Alaska" using modern communications media like Twitter, Facebook and lesser known platforms like Parler to organize and coordinate a deadly armed attack on the U. S. Capitol on Jan. 6, 2021.

In the wake of the attack, Twitter and Facebook finally (and rightly) terminated President Donald Trump's accounts after he repeatedly used them to encourage followers to "fight like Hell" and "go to the Capitol." Similarly, social media platforms were right to block accounts used by militants to plan the siege on the Capitol and allegedly future violent attacks.

Now that the social media platforms no longer serve as the pipeline for lunacy, militants have apparently resorted to old school technology -- radios. The Federal Communications Commission's Enforcement Bureau just issued an advisory warning to radio licensees that federal law prohibits using radios to commit or facilitate criminal acts. The advisory applies to ham radios, Citizens Band radios, Family Radio Service, General Mobile Radio Service and even walkie-talkies.

The FCC warned amateur radio licensees that federal law prohibits them from transmitting "communications intended to facilitate a criminal act" or "messages encoded for the purpose of obscuring their meaning." 47 C.F.R. Section 97.113(a)(4). In particular, operators of Citizens Band radios, were reminded that they cannot use those radios "in connection with any activity which is against Federal, State or local law." 47 C.F.R. Section 95.333(a). The warning notes that violators using radios to facilitate crimes may be subject to significant fines, seizure of radio equipment, and, in some cases, criminal prosecution. 47 U.S.C. Sections 401, 501, 503, 510.

While the Bandit and Snowman's use of Citizens Band radios probably violated federal law, in the scheme of things the Coorscapade seems like a lighthearted prank. The stakes are higher now. The Federal Bureau of Investigations has found discussions on social media platforms among suspected militants suggesting that some of the amateur radio services regulated by the FCC are being used by militants to communicate and coordinate future acts of violence, including additional attacks on buildings in Washington, state capitols and even the Presidential Inauguration.

The use of social media to organize the attack on the U.S. Capitol has re-ignited the debate about the thin grey line between free speech guaranteed by the First Amendment and vicious speech intended to incite violence, which is not protected. Apparently anticipating criticism of even issuing a reminder of the existing law, the FCC warning explicitly acknowledged that speech is protected under the First Amendment, but using regulated radio frequencies to commit or facilitate crimes is not.

While the FCC, as an arm of the government, actually can run afoul of the First Amendment, it has apparently taken many by surprise that private companies cannot. The plain text of the First Amendment protections for free speed clearly apply only to the government, as in "Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Even so, there has always been an outer limit to the protection of free speech, and mob communications to organize and attack, vandalize the U.S. Capitol, and beat and kill police officers is clearly far beyond anything that deserves protection.

Private companies such as Twitter and Facebook have a legal right to prohibit speech of any kind of employees. See e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982) (the First Amendment protects individuals only against government, not private infringements on free speech rights). The legal issues surrounding regulation of free speech of users on social media platforms are much murkier, but the need for decisive action is more important than ever.

Social media platforms have been used to facilitate acts of horrific violence before. In 2019, a white supremacist terrorist group killed 51 people and wounded 49 more at two mosques in Christchurch, New Zealand. The terrorists live streamed the slaughter on Facebook and despite prior efforts to address such vile content, Facebook was unable to stop the video.

In 2017 Facebook, Twitter, Google, Microsoft, and other major tech companies established the Global Internet Forum to Counter Terrorism. The purpose of GIFCT was to prevent violent extremists from exploiting digital platforms to carry out acts of violence. One wonders how GIFCT members could have missed or misread the posts and videos of the violent mob planning for weeks to attack the U.S. Capitol.

While suggestions to break up large technology companies may be overkill, it's clear that the social media companies have been, and will likely continue to be, wholly unsuccessful at self-regulation. It's time that Congress, academics and technology giants work together to prevent speech that explicitly encourages or facilitates violence. After the outrage dies down, the violent mob members that attacked the U.S. Capitol are not going to be content with radios and pay phones. They will find homes again on social media. 