(Part 1/2) Devils' Advocate: Meet The Lawyer Fighting To Keep Nazis And Trolls On Twitter
Shortly after the attorney Marc Randazza moved into a new office earlier this year, his 9-year-old daughter informed him, judgmentally, that there was nothing on the walls. Randazza’s recent, high-profile clients include neo-Nazis and white supremacists, whom most of his colleagues won’t get anywhere near. He’s not the kind of lawyer who needs to buy fancy art. So he told his daughter to draw him something, anything, with one condition: It had to be about the First Amendment.
Today, Randazza’s small space in Gloucester, Massachusetts, is still mostly bare. But across from his desk hangs a crayon rendering of an American flag overlaid with determined elementary school handwriting.
“FREEDOM,” it reads in between the stars. And in the topmost stripe: “Of SPeech.”
That’s fitting, because Marc Randazza has what his critics would call a childishly simplistic devotion to the First Amendment. It’s his labor, his love, and, as you might expect of someone Mike Cernovich calls “the Clarence Darrow of the free speech movement,” his brand. He embraces the devout and slightly overdramatic spirit of the famous Evelyn Beatrice Hall quote: “I disapprove of what you say, but I will defend to the death your right to say it.” By this well-polished nugget of Enlightenment logic, the more society hates what someone has to say, the higher the calling to represent them. Historically in the US, that has meant socialists, pornographers, artists, and Nazis.
The advent of the internet ignited a big bang of speech, the consequences of which America hasn’t yet reckoned with.
For a long time, that calling led Randazza to represent some of the biggest names in porn: Kink.com, Bang Bros, Corbin Fisher. But more recently, he’s become better known as a free speech advocate for a who’s who of internet-famous right-wingers, people who run the gamut from trollish to hateful to worse. They include the Infowars goblin Alex Jones; the neo-Nazi Andrew Anglin; Gawker bête noire Chuck Johnson; the white supremacist writer Jared Taylor; the white supremacist politician Paul Nehlen; an anonymous planner of the deadly 2017 Charlottesville “Unite the Right” rally; and the Twitter activist Cernovich, who is Randazza’s friend. In so doing, he’s become the legal face of the burning conservative conviction, fanned vigorously by President Trump, that the real victims of speech suppression today are on the right.
The advent of the internet ignited a big bang of speech, the consequences of which America hasn’t yet reckoned with. False speech, and speech many of us find hateful, proliferates in a way that would be unimaginable to those who waged the foundational First Amendment fights of the 20th century. And most of that chaotic speech — yours, mine, everyone’s — is now happening in private spaces ruled by massive, unaccountable technology companies. At the moment, the people who claim to be most threatened by those companies' actions are on the right. But regardless of politics, the rules around speech have changed in a real and tangible way, and have done so largely beyond the bounds of democratic government. This vexes Randazza to the point that he’s willing to argue a position that liberals see as a naked attempt by the far right to preserve its ability to publish dangerous ideas and cynical falsehoods on platforms that aren’t obligated to host them.
“There is a war on right-wing speech,” Randazza, whose own politics are a mishmash (he favors widespread economic redistribution and universal health care but voted for Gary Johnson in 2016), told me. “If you can’t win in the marketplace of ideas, you try to change the marketplace.”
The marketplace has indeed changed, but not really in the Overton window way Randazza means. In the great free speech cases of the 20th century, the government tried to limit the speech of publicly despised groups. Those fights took place in court. Today, the flashy speech fights take place on college campuses or, more often and more significantly, on the social networks that have largely privatized and monetized public discourse.
Whatever you think of the supposed war on right-wing speech, it so far has not been fought principally in the courtroom but on the servers of profit-motivated corporations more concerned with monthly active users than democratic principles. This battle has different rules — most importantly, that tech platforms can legally censor basically anything their users post for basically whatever reason, or even for no reason at all. So while a lawyer protecting a neo-Nazi’s right to express himself would once have battled a state or local government and cited First Amendment precedent, today that lawyer’s real foes are the Silicon Valley mega corporations on whose products no one has any legally protected free speech rights at all, be they neo-Nazis or nuns.
Given the settled law that gives social networks such latitude to moderate speech, it’s worth wondering why a First Amendment lawyer would pick this fight at all, unless to seek publicity.
But Randazza, even critical colleagues acknowledge, is much more than a troll with a law degree. At a high level, he’s doing all this because, he argues, Twitter and YouTube and Facebook are de facto public spaces with capricious private overlords, and there are legal reasons that they should be more tolerant of extreme speech. To that end, he sued Twitter on behalf of Taylor, who was booted last December for violating the company’s “hateful and abusive content” policy. He filed a complaint with the Federal Election Commission against Twitter for banning Paul Nehlen for a racist tweet in February, in what the complaint claims is effectively a contribution to Nehlen’s political opponents in a Wisconsin congressional race. He’s arguing that an anti-Semitic social media troll storm initiated by Andrew Anglin against a Montana woman did not constitute an actionable threat. And he doesn’t only fight on behalf of the right; he currently — controversially — represents the Satanic Temple in a religious discrimination lawsuit against Twitter. He’s consistent, or opportunistic, depending on your perspective.
But the deeper story is more complicated, and it has as much to do with the place of free speech in American culture as it does American jurisprudence.
The backlash is a virtuous feedback loop, a sign of doing something right.
Even in less polarized times, lawyers who defend the speech of despised groups tend to be themselves despised. Randazza sees himself as the heir to that tradition, and all of the scorn that comes along with it — the kind of scorn one gets while defending Alex Jones’ tall tales about the Sandy Hook shootings in a lawsuit filed by the grieving parents of murdered children. At 48, with a Masshole caw, a boxer’s mug, and an attraction to television cameras, Randazza seems indeed to relish the blowback: from other lawyers, from anonymous emailers sending death threats, and even from a member of his immediate family who did not want to be interviewed for this story. To a lawyer of Randazza’s ilk, as to a right-wing troll, the backlash is a virtuous feedback loop, a sign of doing something right.
Yet in 2018, due largely to a resurgence of white nationalism, those who have traditionally been most comfortable with defending uncomfortable ideas are reconsidering what’s acceptable. In June, a leaked internal American Civil Liberties Union memo revealed that the organization had issued new case selection guidelines to help balance its mission to protect free speech with its mission to safeguard civil rights. “The potential conflict between advocacy for free speech and for equal justice in the fight against white supremacy is especially salient,” the document stated. Though the ACLU played the memo down, it can easily be read as a repudiation of its famous work defending the First Amendment rights of neo-Nazis in the late 1970s — and a sign that it might not use its resources and credibility to go to bat for neo-Nazis in the future. To Randazza, this was “a betrayal,” proof that even the staunchest institutional guardian of free speech was wilting in the heat of 2018’s brutal partisan politics.
The memo pulls into question what Yale law professor Owen Fiss calls, ambivalently, the “firstness of the First Amendment”: a dogma that the guarantee of free speech is more important than any other right. It’s a powerful idea that usually goes untested. It bleeds easily into a popular belief that freedom of expression should be of paramount importance even in nonpublic domains of American life — like, say, social networks. And on the big tech platforms that control the future of speech, this belief is very much at stake. Which is why, with or without the ACLU, Marc Randazza is determined to plead his case.
In August, I visited Randazza at his seaside office in Gloucester, the small, working-class Massachusetts port city where he was raised. Born in 1969, Randazza grew up in a tight-knit Italian American community in which everyone was assumed to be, and perhaps was, a cousin.
(While I waited in line with Randazza to buy his morning coffee at Gloucester’s tiny Caffe Sicilia, he was stopped by a smiling old man with several teeth, who began speaking to him in Italian. After a few minutes, Randazza explained that the old man had known his grandfather. Randazza had never met the old man before, but, he said, “He recognized me by my face.”)
Randazza was a self-described “problem child” who never skipped school. “Why would I?” he asked. “That’s where the weed was.” He listened to Dead Kennedys and Black Flag, and on weekends he stomped into rock clubs in Boston in combat boots. He internalized punk’s DIY libertarian streak and he got off on starting trouble, physical, verbal, intellectual, whatever. It was post-Vietnam America, and authority was bullshit.
Eventually, his antiauthoritarian temperament found a principle to attach to. A far-left high school teacher told Randazza the school couldn’t compel him to pledge allegiance to the American flag, as it would violate his First Amendment rights. It made an impression, all the more so when another teacher encouraged Randazza’s classmates to rough him up unless he said the words.
“Every First Amendment lawyer has a ‘Quit hassling me, man’ moment,” he said. “That was mine.”
Randazza had what he called “punk rock communist politics” when he entered the University of Massachusetts, Amherst, where he “majored in female anatomy and recreational horticulture.” (He really majored in journalism.) After college he tried driving a taxi, joining the Army (“because I’m a fucking idiot” — he left after six months on an entry-level separation), working as a journalist in Italy, partying in New York, and laboring on tugboats in Miami. A girlfriend in Florida told him he was smart, as had a professor in a journalism and law course in college. He started Georgetown Law School in 1997. He had just seen The People vs. Larry Flynt, Miloš Forman’s dramatization of Hustler Magazine, Inc. v. Falwell, in which the Supreme Court held that Jerry Falwell could not recover damages from Hustler for a satirical interview in which Falwell discusses losing his virginity to his mother. Here was the First Amendment Randazza — and other liberals — wanted to protect: a law that safeguarded subversive speech from powerful moralistic assholes.
“Once John Ashcroft got into his job, I started driving Porsches.”
But law school was a drag. It was full of snobs, and worse, Randazza found, moralistic assholes. As a first-year law student, he ran afoul of the Women’s Legal Alliance with some off-color posters in a successful bid for the student bar association. The dean of students told him to apologize. Randazza threatened to tell CNN that the law school was censoring political speech, and the dean backed down. It set a pattern of doubling down against political correctness for Randazza, who years later is still stunningly vindictive and sexist about the incident.
“The WLA cow had to apologize to me,” he recalled in a 2016 interview.
Randazza was less successful in class. His grades weren’t good enough to get a job with the ACLU, where he dreamed of working, or at a white-shoe firm, where much of his class went. Instead, after graduating from Georgetown in 2000, he bounced around. First there was a fellowship, then there was a stint doing condo law, and, finally, he landed at a small First Amendment practice in Orlando. Given that it was Florida, he represented mostly porn clients, as the Justice Department under the new George W. Bush administration had ramped up obscenity prosecutions.
“I didn’t vote for the guy and I can’t stand him. And he should be in jail for war crimes,” Randazza said of the former president. “But once John Ashcroft got into his job, I started driving Porsches.”
The contemporary fight over free speech beliefs occurs in a dense fog created by the constant conflation of federal speech laws and private speech rules.
The First Amendment guarantees freedom from government intervention into speech except in cases that create a small number of special problems, among them incitement, obscenity, and defamation. They’re all intentionally hard to prove.
The private rules that govern the websites on which much of this fight takes place, Twitter, Facebook, and YouTube, guarantee no such thing. These social networks enjoy almost complete discretion to moderate content posted to their platforms how they see fit. They can take down whatever they want without meeting any kind of standard or fulfilling any kind of test at all. That’s thanks to Section 230 of the Communications Decency Act.
Section 230 immunizes internet service providers from liability due to user-created content. At the outset of the consumer internet, they did not have this protection. In the early 1990s, a series of court rulings had suggested internet companies would be liable for content posted to their sites if they moderated that content whatsoever. That created a problem. If internet service providers were afraid to moderate for legal reasons, they might not take down truly heinous content, like child pornography.
Facebook, Twitter, and YouTube grew into mind-bogglingly huge companies precisely because they didn’t have to worry about the ways they police speech.
Signed into law in 1996, Section 230 was originally written as a way to allay those fears and encourage internet companies to take down the worst kinds of stuff. A subsequent federal decision interpreted 230 to mean that any potential liability over objectionable user content might cause these networks to censor too broadly, and chill the obvious speech potential of the internet. Section 230 emerged from this ruling, Zeran v. America Online, Inc., as a powerful statute that allowed tech platforms almost complete, legally protected control over their users’ content. Facebook, Twitter, and YouTube grew into mind-bogglingly huge companies precisely because they didn’t have to worry about the ways they police speech. Section 230 has made their very existence possible; it is their oxygen. It is why we have the internet we have today.
But for Randazza’s clients, 230 is more like a ball gag than an oxygen mask. Legal arguments that the big social networks are public spaces in which it should be unconstitutional to censor speech have been met by the judiciary with deaf ears. Jared Taylor’s lawsuit against Twitter recently lost in a California appellate court, which ruled that “any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under Section 230.” According to Randazza, Taylor is currently deciding whether to appeal.
It’s not that 230 can’t be weakened. SESTA and FOSTA, bills with bipartisan support that President Trump signed into law in April, do carve out a narrow exception to 230 immunity for state and federal sex trafficking laws. In recent testimony before the Senate Intelligence Community, both Twitter CEO Jack Dorsey and Facebook COO Sheryl Sandberg said they could be open to changes to 230. And President Trump has lobbed the occasional Twitter grenade accusing the tech industry of viewpoint suppression. But such a broad exception around political speech seems extraordinarily unlikely, even in a restive legislative environment — such regulation is much more likely to center on privacy or election interference. A source familiar with the Trump administration’s thinking told me the White House sees the speech regulatory path as “extraordinarily difficult,” particularly in the event of a split Congress after November.
Next week, Attorney General Jeff Sessions will meet with state attorneys general to discuss what the Department of Justice characterized in a press release as tech companies “intentionally stifling the free exchange of ideas on their platform,” though two sources familiar with the initiative told me its unlikely to target 230 as a means of weakening the platforms.
“Social platforms are just allowed to viewpoint discriminate,” said Kate Klonick, a law professor at St. John’s University who writes about freedom of expression and social media speech rules. “They just are. There’s no question whatsoever.”
Klonick and the Yale law professor Jack Balkin have argued that speech regulation no longer forms a simple two-party relationship in which state power threatens individual expression. The modern model is a triangle between states, tech companies, and individual users. The state still has the limited power to regulate individuals’ speech. But so too can the state pressure or mandate social platforms to limit what they publish (as it did in FOSTA/SESTA, which forced websites like Backpage to stop hosting ads for sex work, resulting in conditions that sex workers say have endangered them), and so too do social platforms govern the speech of their users.
The First Amendment, in this model, is of diminished importance; its protections simply don’t apply to most speech on the internet. And in the absence of politics, the push to apply only a First Amendment standard to private speech online might be seen as a sympathetic attempt to simplify this profusion of new rules and relationships.
But: 2018. Some of Randazza’s clients, most notably Alex Jones, have been challenged on two sides of this new, triangular model. Jones has been sued for defamation by parents of victims of the 2012 massacre at Sandy Hook Elementary School, which is a matter for the courts, and has been suspended and banned by various speech platforms, which is not. The conservative media has eagerly used the confusion between these two speech domains to suggest — falsely — that social platforms violate civil liberties when they moderate content. So have conservative politicians. In July, shortly after Facebook temporarily banned Jones’ Infowars account, Sen. Ted Cruz tweeted:
“Am no fan of Jones ...but who the hell made Facebook the arbiter of political speech? Free speech includes views you disagree with. #1A.” That tweet, of course, conflates two very different things: platform policies, which exist to protect businesses, and the First Amendment, which exists to protect speech.
“Either he’s an idiot or a maniacal asshole and doesn’t care,” Klonick said of Cruz (who was an editor on the Harvard Law Review).
The big social networks have done much to contribute to this confusion. They enforce their rules inconsistently and hold different users to different standards. Twitter, for example, routinely dismisses harassment reports against neo-Nazi accounts yet suspended a prominent #MeToo activist for tweeting a phone number. Meanwhile, liberals have hammered these networks for not using that power more — particularly against hate speech and fake news. It’s a sign of how confusing the debate over online speech is, and how it scrambles political categories, that some conservatives want government regulation of internet speech platforms, while many liberals and members of the press have called for more unilateral censorship by the very same companies.
“Either he’s an idiot or a maniacal asshole and doesn’t care.”
Beyond the way politicians like Cruz drag the First Amendment into the debate over online speech, the First Amendment still does influence these platforms. The American lawyers who wrote the speech rules that govern these sites grounded them in the American legal tradition. Free speech is central to the identity of at least one of these platforms, Twitter, which was famously described by executives as “the free speech wing of the free speech party.” (Of course, venerating free speech principles allowed these platforms for many years to avoid the incredibly difficult task of content moderation.) And users across platforms have what Klonick calls “free speech expectations”: Norms around free expression, which, if violated egregiously enough in either direction, could lead them to abandon a platform.
Those norms might be shaped by the First Amendment but they aren’t bound by them. That means the fight happening on social media around the First Amendment has less to do with the Constitution than it does with the values of its users and their feelings about free speech — and how likely enforcement actions are to cause them to remain on or leave a service. Do most users actually want virtual speech limited only by exceptions to the First Amendment? Do enough users care about the principle of a law that visibly protects Alex Jones and Andrew Anglin that they would abandon the platforms that censor them? Well, no. There was no exodus from Facebook after it banned Jones.
That is, most social media users probably have no special belief in the firstness of the First Amendment. As for those who profess to, well, take a look at Gab to get a sense of what a social network governed only by First Amendment exceptions looks like in practice. That free-speech-über-alles Twitter alternative served me the following “popular posts” on a recent afternoon: a photograph of German children in traditional dress dancing a jig, an oil painting of Adolf Hitler, and a post about “#LIBERALHEADEXPLOSIONS” promising that Supreme Court nominee Brett “#KAVANAUGH IS GONNA BE #EPIC.” And more to the point, from a business standpoint, very, very few people use it.
As chaotic as the big platforms are right now, in other words, users’ expectations are not the thing that’s preventing them from moderating — censoring — more speech. “There is no guarantee that social media platforms will continue to be so free-speech friendly in the future,” Balkin, the Yale law professor, wrote in a recent paper. “Platform policies are the result of a tug of war between the demands of the company owners and shareholders, end-users and nation states. The direction of this tug of war is unpredictable.”
That’s frightening to Randazza, and to the cottage industry of middle-aged intellectuals bearing alarmist messages about the coddled American mind and safe spaces. To them, a world where the discourse happens in a private digital space designed above all to prevent losing users marks a major shift in American culture. It’s a move away from a time-tested speech principle and toward a trendy profusion of speech rules — rules that they say are bound to boomerang on young liberals who don’t remember past speech wars.
More than that, it’s a future in which the invocation of free speech loses its talismanic cultural power to connote neutrality, fairness, and democracy. But then again, it’s worth wondering how and for whom it acquired that power to begin with.