EFF is wrong about Nazis

The Electronic Frontier Foundation (EFF), an organisation whose aims and work I broadly support, has published a blog post entitled “Fighting Neo-Nazis and the Future of Free Expression.” The authors argue forcefully that GoDaddy, Google, and Cloudflare all made a mistake when they rejected the Daily Stormer from their platforms, and that their actions have set a dangerous precedent.

I think EFF is wrong on this issue.

EFF’s post makes a “slippery slope” argument: steps taken by companies to remove neo-Nazi publications from the internet will lead to censorship of groups whose views are not widely considered abhorrent. The example given is Black Lives Matter. The implication is that the authors of the post can find no relevant moral or legal distinction between the publishers of the Daily Stormer and the organisers of Black Lives Matter.

Once more: the post’s authors imply they cannot see a clear line that would allow them to distinguish an organisation whose aim is to perpetrate violence against groups identified by race and religion from one which aims to defend a group identified by race from violence, and do not believe that private commercial enterprises should seek to define one. Either that, or they do not believe that such a distinction is relevant to the discussion.

This is, in a word, ridiculous.

First, let’s get the discussion of “free speech” out of the way. Despite frequent references to legal free speech rights within EFF’s blog post, including their belief

… that no one—not the government and not private commercial enterprises—should decide who gets to speak and who doesn’t

this discussion does not in practice revolve around a legal issue. Being kicked off a private commercial platform does not infringe a US citizen’s free speech rights. GoDaddy, Google, and Cloudflare all presumably believe that they are fully within their legal rights to exclude neo-Nazis from their platforms, or they would not have taken the action that they did.

Since there doesn’t appear to be a legal argument to make, EFF is relying on an instrumental argument for why these companies should not have acted as they did. The authors imply that normalising the banning of neo-Nazis will inevitably lead to bans on Black Lives Matter activists. But in what way is this inevitable, given the clear moral distinction between groups that seek to deprive others of their constitutionally protected rights through violence, and those that do not? Displaying Nazi symbols or performing a Nazi salute in public is illegal in Germany, but this law doesn’t seem to have been inevitably followed by a crackdown on other political speech.

It is simplistic in the extreme to believe that such an action inevitably opens the door to discrimination of a different kind. In the UK, for example, the Equality Act 2010 would render many kinds of corporate discrimination illegal, because race and religious belief are “protected characteristics” under that law. Denying service to neo-Nazis, on the other hand, remains legal as far as I can tell: belief in the racial inferiority of other humans is not a “protected characteristic.”

But there is a more important point here. Even if this were somehow a legal issue—and perhaps there are jurisdictions where it is—then I would make this stronger claim: if the law criminalises the “de-platforming” of neo-Nazis by a corporation, then the law is wrong and must be changed.

Real Nazis came to power in 1933 by legal means, and much (but not all) of the vile discrimination they perpetrated over the following years had a legal basis. The fact that something is legal doesn’t make it right. The fact that something is illegal doesn’t make it wrong. If there is a serious risk that the law will allow neo-Nazis to use these platforms to amplify their voices, seize power and achieve their hateful aims, then the law must change.

EFF’s post also notes that the actions taken by GoDaddy, Google, and Cloudflare did not follow an established process or policy. On this point, I can agree. These companies (and others like them) should, at a minimum, ensure that they have “Terms of Service” which make clear that they will not allow their platforms to be used to spread intolerance and hate, or to promote violence. They should have clear internal processes to handle reports of content which violates these terms.

In summary, I think EFF needs to reconsider their position on this issue, and establish whether they are confusing questions of what is legal with questions of what is right. They also need to consider whether the “slippery slope” argument is, in fact, valid. Are we really so simple-minded that we cannot distinguish between the speech of Black Lives Matter and the speech of neo-Nazis?