These are the times that try our Constitution.
The recent mass shooting in El Paso, Texas, could almost have been contrived in a laboratory as a means by which to test Americans’ commitment to the Bill of Rights. The killer, a young white-supremacist man who believed stupidly that he was striking a blow against “cultural and ethnic replacement,” was a poster to the website 8chan — a site that, in any other country, would likely have been prosecuted and shut down by now. To carry out his attack, he used an AK-47, a semi-automatic rifle that, in any other country, would not have been available for purchase, and would have been difficult to come by secondhand, or even to steal. In explanation of his attack, he left a manifesto that, in most other countries, would have been removed from circulation by the chief censor moments after its release. For the sort of people who say, as an insult, “America is the only country in the world in which . . . ,” the incident and its aftermath served as indictments not only of the shooter and his abhorrent, villainous ideology, but of the United States as a whole.
Those people are wrong. They were wrong before this abomination, and they are wrong after it. Now, as ever, the quality of a free society is measured by how that society protects its liberties when they have been abused, not by how well it celebrates them when they are under no strain. What happened in El Paso was an unconscionable disgrace, and, when we have finished reflecting upon it, we should exert great effort in considering how we might prevent its like from happening again. But if we turn against our key strengths in the process, we will achieve a Pyrrhic victory at best, and, at worst, end up dismantling our inheritance for a mess of pottage.
Perhaps the two most dangerous words in all of politics are “Do something!” They are also, alas, among the most common. Less than a day had passed before Senator Charles Schumer (D., N.Y.) demanded that Senator Mitch McConnell (R., Ky.) convene an emergency session of the Senate in order to pass the House of Representatives’ “universal background check” bill and, as if on cue, a host of his Democratic colleagues had joined him in implying that failure to comply would leave the dissenters with “blood on their hands.” One can only ask . . . why? The shooter in El Paso did not obtain his firearm without a background check. On the contrary: He passed such a check, as the perpetrators of mass attacks almost invariably do. Why, exactly, would we seek to ensure that a crime such as this does not happen again by passing a law that does not so much as intersect with it?
And why, for that matter, would we rush to do anything else besides? Last year, the RAND Corporation — hardly a font of unbridled Patrick Henry–esque libertarianism — conducted a survey of the relevant academic research and failed to find a single gun-control policy that has been proven to reduce mass shootings in the United States. “We found no qualifying studies,” its report concluded bluntly, “showing that any of the 13 policies we investigated decreased mass shootings.” In a free country such as America, one would need to discuss the propriety of taking drastic action even if that action were guaranteed to work; the Second Amendment and its 44 state-level equivalents were passed for good reason, and remain relevant to this day. But given that no such evidence obtains, the question for the “Do something!” crowd bears repeating a little louder: Why?
What about the odious, radical, hortatory language that the perpetrator swam in? Surely that should be restricted, given the circumstances? No, no, no. If it is to come, the solution to the rising tide of white-supremacist violence in the United States will not be the product of a sea change in our thinking about individual liberty or of an em-brace of European-style “hate speech” legislation, but of sustained government action that, while aggressive, assiduously respects the First Amendment’s circumscriptions. The temptation to remove the websites on which white supremacists and other worthless types congregate is comprehensible, but, under both existing statute and contemporary free-speech jurisprudence, such action would be illegal in America unless and until those websites can be shown to have been explicitly designed to facilitate criminal acts. 8chan, while ugly, does not fit that narrow bill — and it should not be made to fit that narrow bill. Yes, the site is a hotbed of bigotry, hatred, and nascent violence. But for the government to conflate the bad choices that its users are making with the intentions of its owners would be to set a dangerous precedent that would rebound for years to come. 8chan’s stated purpose, remember, is as a designated free-speech zone, not as a tool for racketeers or a directory for hitmen, and its single house rule is “Do not post, request, or link to any content illegal in the United States of America. Do not create boards with the sole purpose of posting or spreading such content.” In consequence, it is undoubtedly protected by both the First Amendment and the Communications Decency Act, the latter of which renders users, not platforms, liable for violations of the law. Were the government to step in and attempt to seize it, or to drag 8chan’s owners into court, one can only wonder who would be next.
A far better course of action is to leave the government to do what only it can do — to infiltrate, surveil, monitor, assess credible risks, and then move if the impetus is there — and to allow the American citizenry to do the rest, simply by choosing with whom they wish to associate. Under the existing structure of the Internet, there is no wholesale way to prevent the 8chans and the Stormfronts from setting up websites and from communicating online — and, again, there should not be. But there is ample room for America’s tech businesses to decline to provide them with tech support, to decline to help them scale up, and to decline to help protect them. A good analogy here might be with the owner of a printing press. Suppose that a white supremacist writes a Hitler-praising pamphlet that he hopes to distribute en masse and, upon realizing that his inkjet printer is not up to the task, asks a local printer to make 500,000 copies. The owner of the press would, of course, be within his rights to refuse to provide help — and he should. “No,” he might say. “Go home and do it yourself.” Were Cloudflare, Amazon Web Services, and a few others to take a similar approach, the welcome mat would be pulled from underneath some of the worst actors within our ranks. And all without cramping a solitary piece of the American order.
Whenever the United States faces a crisis or a tragedy, it is invariably suggested in the press that the country needs a more streamlined political system that is capable of transmuting the transient whims of the majority into concrete action in a matter of days. This view is a dangerous one, and it ought to be resisted at all costs, for when a nation sets up a direct pipeline between its emotions and its laws, it does not keep its liberty for long. There is much that we can — and should — do in order to respond to changing circumstances. We must recognize that there are certain corners of the Internet that are anything but harmless or “ironic”; we must accept that evil ideologies such as white supremacy represent a physical as well as a spiritual problem in America; and we must avoid complacency, even as we defend our elementary rights. But defend them we must. Even — no, especially — when our grief points us in another direction.