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Two students at the University of Connecticut (UConn) have been “charged with ridicule on account of creed, religion, color, denomination, nationality or race. The misdemeanor charge is punishable by a maximum of 30 days in jail, a fine of up to $50 or both, according to state law.”

Video circulated by the UConn chapter of the National Association for the Advancement of Colored People (NAACP) shows the students, both 21, repeatedly using the n-word while walking through a parking lot. To put it bluntly, the students are fucking idiots. But the way the case is being handled—and the state law under which they are being charged—should deeply upset everyone who cares about free speech.

If you have any information about this racist recording at UConn. Please email naacpuconn1909@gmail.com We will not tolerate racist behavior on this campus ✊????✊????✊????✊???? pic.twitter.com/ym8rPqd6kJ

— UCONN NAACP (@naacpuconn) October 12, 2019

According to The Washington Post, Jarred Karal and Ryan Mucaj are also facing possible expulsion from UConn for violating the school’s code of conduct. That’s exactly right: The university should be deciding whether such mindless, ugly action warrants suspension of expulsion. Even though UConn is a state school (and thus bound by the First Amendment), it should be allowed to set reasonable expectations for student and faculty behavior.

But Connecticut’s hate crimes law penalizes all sorts of speech that should absolutely be protected. According to the law,

Any person who, by his advertisement, ridicules or holds up to contempt any person or class of persons, on account of the creed, religion, color, denomination, nationality or race of such person or class of persons, shall be guilty of a class D misdemeanor.

It’s not immediately clear whether Karal and Mucaj will be found guilty because they were not directly addressing particular individuals, an important aspect of the state law. In true dumbass fashion, in the video they seem to be wandering through a parking lot (with a third student who was not charged) shouting the slur repeatedly to the open air.

But the Connecticut law, “a rarely-enforced relic dating to 1917,” according to the folks at The Foundation for Individual Rights in Education (FIRE), effectively bans a huge amount of speech. When reading about this law, I thought immediately of the TV show Family Guy, which is based in Connecticut’s neighboring state of Rhode Island, and rarely misses an opportunity to mock and deride all classes of “persons, on account of the creed, religion, color, denomination, nationality or race.” It’s a rare episode of this New England-based show that doesn’t break the intentions of the Nutmeg State’s stupid law. Few TV shows have their own Wikipedia pages devoted to their takes on various groups that would be protected under the Connecticut law. Family Guy routinely mocks Islam, Catholicism, Christianity, transgender people, heterosexuals, old people—you name it.

Based on what I’ve read, including comments from UConn’s president, I think these students should face some sort of serious disciplinary action from the school, possibly even expulsion.

But that Connecticut law should be deep-sixed once and for all, especially given the state’s colonial history as a site of religious dissent and toleration. Speech is under attack everywhere these days, in ways that it hasn’t been since the 1950s. Just yesterday, Reason reported on a proposed law in Massachusetts that would criminalize the use of the word bitch. Leading national politicians routinely trot out new ways to regulate speech (looking at you, Sens. Josh Hawley and Elizabeth Warren). Conservatives are calling for porn prosecutions and liberals get bent out of shape over perceived Russian interference in political discourse on Facebook and other social-media platforms. Incidents such as the one at UConn are disturbing reminders of casual racism. They shouldn’t also be reminders of the precariousness of free speech.

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“When was the last time anybody here saw a dick pic on Facebook?” asked Gretchen Peters, the chair of the Alliance to Counter Crime Online (ACCO), addressing representatives from the House Committee on Energy and Commerce last week. “If they can keep genitalia off of these platforms, they can keep drugs off of these platforms.”

Peters was part of a panel sent to testify on Section 230, the piece of legislation that protects tech companies from facing liability for content posted by third-party users online. There has been a great deal of misinformation peddled about the law—namely that platforms are prohibited from moderating content they deem harmful. In reality, it encourages tech companies to remove posts “in good faith,” so as to prevent the internet from devolving into a cesspool of negativity. Peters says they should be doing more.

But her testimony was laced with inaccuracies that reflect a fundamental misunderstanding about her goal, which is to punish online platforms and remove their legal protections should they fail to aggressively police illicit content.

There is an “incredible range and scale of illicit activity happening online,” she mused. “It is far worse than I ever imagined.”

Issuing an apocalyptic warning to the audience of members of Congress, Peters continued on to describe how social media giants are actively helping facilitate the “public health crisis” known as the opioid epidemic, which is claiming 60,000 American lives each year. A stream of studies “by ACCO members and others” affirmatively show the “widespread use of Google, Twitter, Facebook, Reddit, [and] YouTube to market and sell fentanyl, oxycodone, and other highly addictive, often deadly substances to U.S. consumers,” said Peters. “Every major internet platform has a drug problem.”

Yet which studies she is referencing remains unclear, as does her definition of “widespread.” The Center for Safe Internet Pharmacies (CSIP), which aims to curb illegal pharmaceutical sales online, estimates that less than 5 percent of all opioid purchases come from internet transactions. Interestingly, that same study surmises that the majority of such sales occur on the “dark web,” as opposed to the legally operated platforms that have drawn Peters’ ire.

“The voluntary efforts of internet and payment platforms such as Google, PayPal, and Bing, among other companies, to curb the online promotion of illicit products have disrupted these illicit businesses’ operations,” the report concludes, “specifically by removing the options of paid advertising and the most common payment methods.”

CSIP also specifically mentions Reddit, whose CEO, Steve Huffman, testified that the website would cease to exist in its current form should Section 230 protections be removed. “Drug vendors also take advantage of anonymous chat forums to find customers, but the most popular of these, reddit.com, has recently seen more scrutiny and enforcement by platform operators,” the report says.

Yet a vastly different impression was left with many members of Congress, several of whom said they found Peters’ testimony “jarring” and “horrifying.”

But never before has an industry been granted “total immunity no matter what their harm brings to consumers,” Peters said, which sounds deeply alarming on its face. The implication is that platforms can facilitate heinous crimes in broad daylight without fear of any repercussions.

The problem is that Peters’ claim is blatantly untrue.

Section 230 already contains a carve-out for federal criminal law, meaning that online platforms that are implicated in illegal behavior can be charged accordingly. Consider the Silk Road, a now-defunct dark website used to traffic illicit drugs. Its owner, Ross Ulbricht, is serving a double-life sentence plus 40 years. Not even Section 230 could save him from the harsh consequences of the drug war.

So what does Peters propose that Congress do? One can’t be sure—she offered no practical insight, other than a veiled remark about the need for “revised language” in the legislation.

What course of action she would have these companies take isn’t completely clear, either, although she provided some clues. Her dick pic example—which she gave in response to a question about concrete solutions—suggested that these websites have concocted the perfect crime-fighting algorithm. If they’ve figured out how to eliminate full-frontal nudity, so too should they be able to pinpoint and eradicate the drug market, she implies.

But this is preposterous when considering the intricate nature of black markets. It’s easy to find and flag a post that reads, “CHEAP FENTANYL FOR SALE!”—just as a picture of a penis might stand out in one’s newsfeed. Platforms are already working to erase that kind of content with relative success. Harder still is it to uncover covert illegal postings, many of which use secret Facebook groups and code words to fly under the radar. No advanced algorithm can perfectly pinpoint those. A 100 percent removal rate would likely require the manual review of every single item posted to those platforms—both an impossible undertaking, and something Section 230 was supposed to protect companies from having to do.

Even still, Peters would like to see platforms punished for failing to adequately stand up to organized crime. “If it’s illegal in real life, it ought to be illegal to host it online,” she repeated, meaning that tech firms would be criminally liable for failing to find each and every unlawful post.

And in reality, that effort would have the opposite of its intended effect: Worried about pending lawsuits or criminal charges, companies would be apt to remove any and all troublesome content, making it more difficult for law enforcement to track down those who break the rules.

Ironically, Peters seemed to recognize that shortfall when testifying. When tech companies remove illicit activity, she said that it destroys “critical evidence of a crime,” and “[helps] criminals to cover their tracks.” She should not expect that to get any better if her vague policy solution prevails.

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As regular VC readers know, I write with some regularity about antisemitism. As such readers also know, I tend to focus more on left-wing antisemitism, and sometimes write about exaggerations of antisemitism on the right. My interlocutors sometimes accuse me of doing this for ideological reasons, that I “like” the right and “dislike” the left. Well, I actually don’t like right-wing antisemites. At all. To say the least.

But there is another reason why my writings skew the way they do, which is my sense that those concerned most with antisemitism, in particular the Jewish community in both its organizational and individual manifestations, tend to focus on (and indeed sometimes exaggerate the scope of) right-wing antisemitism, and ignore, neglect, or downplay left-wing antisemitism.

A new survey of American Jews confirms my instincts (I excluded the “don’t knows” below). For the record, my response to each of these would be “moderately serious threat”:

In your view, how much of an antisemitic threat does the extreme political right represent in the United States today?

Very serious threat 49%

Moderately serious threat 29%

Slight threat 11%

No threat at all 9%

In your view, how much of an antisemitic threat does the extreme political left represent in the United States today?

Very serious threat 15%

Moderately serious threat 21%

Slight threat 28%

No threat at all 34%

In your view, how much of an antisemitic threat does extremism in the name of Islam represent in the United States today?

Very serious threat 27%

Moderately serious threat 27%

Slight threat 31%

No threat at all 14%

A few things stand out here. First, about half of American Jews think extreme right-wing antisemitism is a very serious threat, and another 30% thinks it’s a moderately serious threat. So it’s not like there is a lack of concern about right-wing antisemitism that somehow needs correcting with blogging and other educational activities.

On the other hand, the statistics for antisemitism on the extreme left and from radical Islamists are remarkable. For example, Great Britain is the second-closest country culturally to the U.S., after Canada. One of the two major parties has been taken over by an antisemite, and his ideological compatriots are a growing force in the Democratic Party. There have been a series of overtly (and well-publicized) antisemitic acts on college campuses arising from the extreme left. Some Democratic politicians openly admire antisemites ranging from the overt (Farrkhan) to the somewhat more subtle (Omar). But 34% of American Jews see no threat at all.

With regard to radical Islam, there have been several murders of Jews and attacks on Jewish institutions emanating from radical Islamists over the last two decades, and Al Qaeda chose to attack New York City on 9/11 in part from antisemitic motive. Antisemitic violence in Europe, including well-publicized murders, comes primarily from Islamists. But 45% of American Jews see no threat at all or only a slight threat from extremist Islamists.

Note also this question:

Over the past five years, do you think antisemitism in the United States has…

Increased a lot 43%

Increased somewhat 41%

Stayed the same 12%

Decreased a little 3%

Decreased a lot 1%

There is, in fact, no good empirical evidence that antisemitism has increased *at all,* much less a lot, though extremist antisemites have become more vocal, organized, and more able to get a platform now that mainstream gatekeepers in the media no longer serve that function. Have they become more violent? Probably somewhat, but that’s a different question than whether antisemitism overall has increased.

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