The battle between a Reddit user and a famous news organization, with Donald Trump’s reputation as the prize, has left our nation reeling.  All of the elements for a great wrestling drama are present, except that everyone is playing the heel.  Indeed, the closest thing to a protagonist is HanA**holeSolo, an anonymous Reddit user fond of posting racist and anti-Semitic content, who issued what may have been a forced apology to prevent CNN from exposing his identity.  This blog chronicles the events from the past few days.  I identify what is and is not problematic, from the perspective of both our First Amendment rights and notions of free speech values – the values that best foster open, productive dialog.

 

The wrestling video:

Last Sunday, President Donald Trump tweeted a short video, made by anonymous Reddit user HansA**holeSolo, depicting the President wrestling to the ground a man whose head has been replaced with a CNN logo.

From a First Amendment perspective, everything is copacetic.  The question of whether speech from @realDonalTrump is private speech or government speech is a contested issue, but the President has a First Amendment right to create tweets regardless.  Although media figures like CNN commentator Ana Navarro have called the tweet “an incitement to violence,” that claim is false as a matter of First Amendment law.  The tweet, like Kathy Griffin’s Trump beheading, is fully protected political commentary.  Incitement, an exception to our free speech protections, exists only when the speech is intended to, and likely to, cause imminent lawless action.  Instead, HansA**holeSolo’s video, and Trump’s tweeting of it, are designed to air the criticism that CNN is not objective in its coverage of the President.

From a free speech values perspective, everything is fairly lousy.  Politics by meme has become perhaps the best way to galvanize support for an idea.  These videos and memes, by their very nature, tend to be simplistic, one-sided, and misleading.  They are often designed to promote outrage instead of reflection.  Videos, infographics, and clever memes are tools used by everyone from the angry, isolated Reddit user, to the social justice advocacy organization, to our President.  This slogan-like way of expressing complex ideas should be beneath them all.

Particularly alarming is that the President of the United States would tweet a video made by a person whose pseudonym is HanA**holeSolo.  Anonymous political speech is a staple of our democracy, made most famous by The Federalist Papers, but I am truly grateful that James Madison’s nom de plume was not Publia**hole.  Further, our President’s sowing of contempt for the media is antithetical to the transparency needed for a well-functioning democracy – even if CNN has compromised its professionalism and reputation by provoking the President and making him its adversary.

CNN’s Response:

On Monday, CNN discovered the identity of HanA**holeSolo, who issued an apology for the wrestling video and other bigoted posts, deleted his posts, and vowed reform.  CNN’s Andrew Kaczynski wrote an article detailing how the video’s creator was discovered.  Kaczynski included the following in his article:

“CNN is not publishing ‘HanA**holeSolo’s’ name because he is a private citizen who has issued an extensive statement of apology, showed his remorse by saying he has taken down all his offending posts, and because he said he is not going to repeat this ugly behavior on social media again. In addition, he said his statement could serve as an example to others not to do the same.

CNN reserves the right to publish his identity should any of that change.”

CNN is now being accused of violating statutes like New York’s coercion statute, which criminalizes compelling someone to act by threatening to expose secret information that will “subject some person to contempt, hatred, or ridicule.”  Federal law also criminalizes extortion, the elements of which would require CNN to gain money to prevent exposure of secret information.  Courts generally uphold extortion statutes against First Amendment challenges, even in cases where a defendant has a legal right to publish the information.  The key to an extortion claim is that, even if CNN has the right to identify the Reddit user, it cannot obtain something valuable through threats.  (I have mixed feelings about courts’ application of the First Amendment to extortion statutes.)  However, CNN claims it has not made any sort of deal with the still-anonymous Reddit user, and if so, may be guilty of no crime.

From a free speech values perspective, CNN may have intimidated an apology out of someone who may not be truly apologetic.  Reports are that the Reddit user sounded nervous about possible revelation of his identity.  If true, this type of shaming speech we dislike is pervasive in our current political climate, and is unwise and unhelpful.  Shaming provokes an apology not through actual reflection, but through fear – and in this way is as unreliable as a forced confession.  Further, shaming may ultimately polarize others sympathetic to the exposed misfeasor, because bullying is an inappropriate way to advance a cause.  Indeed, HanA**holeSolo’s apology notes that he was posting dark memes simply to see how far he could go, likely in a radical (and misguided) fight against our culture’s policing of speech through heavy-handed tactics.  If his apology is sincere, it is an interesting insight into what causes people with no real malice to post highly offensive content.

Threats to CNN

The latest development is that Daily Stormer Andrew Auernheimer has issued Internet threats to CNN, with demands to expose the names of the families of CNN reporters unless certain reporters are fired.  Actual addresses later began appearing on the website 4chan.

Auernheimer’s response is far worse than CNN’s veiled threats and may not constitute protected speech.  The gifs of CNN staffers being shot in the head, alongside personal information, are eerily similar to an unrelated campaign that identified doctors who performed abortions and crossed out the doctors once they had been killed.  The anti-abortion posters and website, called the “Nuremberg Files,” were deemed a true threat by a Ninth Circuit en banc majority, subjecting their creators to a large lawsuit.  Auernheimer’s efforts may not go this far, but could be deemed to sufficiently constitute true threats or incitement that a jury could examine the question (i.e. a court would not hold that the speech is not protected as a matter of law).

The most destructive behavior, in terms of fostering free speech values, is threatening violence against the media.  No one has clean hands in this saga, from the meme creator, to the President’s undignified tweet, to the re-education-like apology (which may be sincere, but we can now never know).  However, no matter how polarized, radical, and embarrassing our political discourse has become, no one should countenance threats to journalists, even ones who behave like wrestling foes instead of upholders of the Fourth Estate.