Do Not Be Confused: A Free Speech Primer

There are those who will try to confuse you about the Free Speech clause of the First Amendment. Do not fall for the easy lie.

*This is not a political post. Instead, it represents fact and law and is for educational purposes. I originally posted this on Facebook, and due to the response, I am now crossposting it to every platform. Please feel free to share it.

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I am an attorney of 16 years. I have studied the Constitution over those years and have edited more than one work on the First Amendment. In fact, just this year I edited an upcoming book by a constitutional scholar who discussed the intersection of the Free Speech Clause and the Religious Expression clause of the First Amendment.

I have worked hard to understand the First Amendment. So, with all the disinformation floating around in the past few days, I thought it might be time for a little Free Speech primer.

The Issue and the Confusion

First: What disinformation is circulating about Freedom of Speech?

Example No. 1: In the days after the Capital insurrection, Representative Josh Hawley’s publishing contract with Simon & Schuster was canceled. He (and others) decried it as a violation of his First Amendment free speech rights.

Example No. 2: In the wake of President Trump’s Twitter and Facebook ban, many have taken to social media claiming the move was a violation of his First Amendment rights of free speech.

The Problem: There is no First Amendment issue in either of these cases. (What’s more, Constitutional Law Scholars like Josh Hawley, who graduated from Yale Law School, know this full well.)

What Does the First Amendment Actually Protect?

Think of the Bill of Rights this way: It is a list of limitations on the government, a sort of redline the government cannot cross. So, according to the Constitution, “Congress (i.e., the Government) shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press....” The Constitution does not preclude any private corporation from setting parameters around speech. Because we live in a free market, capitalist society, any publisher, platform creator, or tech company can choose who it allows to use the platform. And because we love the free market, we generally view this as a net positive. Right? After all, we don’t want the government requiring companies to allow speech that would destroy their brand or business. This would be a different sort of government overreach.

Consider this hypothetical: Your local coffee shop is hosting a poetry reading. Before the event, a group of Neo-nazis calls and asks if they can read the collected poems of Adolf Hitler. Shouldn’t the coffee shop have the right to say, “You are not welcome!” And if said group does show up, does the coffee shop have to let them use the mic? No way.

Now, the analogy: Twitter, Google, and Facebook have created a sort of digital coffee shop. They spent billions creating these platforms, marketing them, and drawing patrons. As a result (and because, remember, we love the free market), they have the freedom to choose who uses their platforms to spread speech. They are not a government actor, so there is nothing in the Constitution that would keep them from elevating some speech and excluding others.

Now, a pop quiz:

(1) What entity (or entities) does the Constitution govern/limit?

(2) Who does the Speech Clause of the First Amendment protect and against whom?

(3) Are Twitter, Facebook, Apple, or Google governmental entities?

The Red Herrings

In legal circles, a “red herring” is a distraction, an argument used to obfuscate the facts and law. The current issue relating to the First Amendment Speech Clause has drawn out a number of red herrings. As I’ve shared the above information, some have cited “Section 230,” which they claim draws a distinction between a “platform versus publisher.” (They have heard this from politicians like Hawley and Senator Ted Cruz.) Section 230 has nothing to do with whether a private company has the ability to prohibit certain types of speech. Instead, Section 230 simply provides that a social media company cannot be held liable for defamatory speech of others (or speech that incites an insurrection, for example). If that Section were repealed, it would likely bring an end to many forms of political speech across all of social media, an end I’m not sure anyone wants. For more on this issue, please read this article on Section 230.

Likewise, many have said, “Yes, but what about the Colorado baker who couldn’t use his private business status to refuse cake-baking services for a gay wedding?” This argument might have emotional appeal to some, but it has nothing to do with the current discussion. First, in that case, the government passed an anti-discrimination ordinance that they attempted to enforce against Jack Phillips, the baker who turned away a gay customer. In other words, this was government action, not an action against an individual by a private company. What’s more, Mr. Phillips’s case went all the way to the Supreme Court, where, in a 7-2 ruling, the Court held the government ordinance was unconstitutionally applied. Ergo, Mr. Phillips won his case.

Do not follow the red herrings. They do not impact the First Amendment issues in the current debates. Take note of the politicians who these arguments, too. Ask yourself: Are they simply trying to manipulate me and confuse the issues?

The Unifying Power of Knowledge

This is not to say that there are not issues that need to be discussed, particularly as it relates to the regulation of large social media platforms. There are. Likewise, this is not to say there are not issues about the efficacy of a Presidential Twitter ban. Again: There are. Regulatory debate on this issue is important, and it should be a bipartisan effort. I hope that happens soon. Likewise, I hope the tech moguls convene and ask themselves whether their decision was the most efficacious given what’s at stake. (I would argue that it was the right decision, which is a matter of opinion.)

Until the powers that be spool up the political machinery to host those debates, or until the moguls review their policies, an informed citizenry needs to work hard to understand the law and the facts. Law and facts provide us with a common basis of truth. From that common basis of truth, we might begin the debates in the coming days from a more unified foundation.

*Please share this piece liberally.