Social Media – Constitutional Reckoning

Sometimes explaining a complex idea – takes more than a sound bite. Today, a remarkable confusion – among Republicans and Democrats – exists in understanding the idea of free speech, assured by our First Amendment. Here is a timely clarification – which will surprise you. It turns on the Constitution.

Legally, the First Amendment assures “Congress shall make no law … abridging the freedom of speech.” It sounds as simple as it is. That said, tailored abridgments, tied to specific “time, place and manner” uses of speech, have been allowed by the Supreme Court. Think liability for “shouting fire in a crowded theater,” “inciting violence,” or disruptions that undermine public safety.

Now, go deeper. What does it mean “Congress shall not”? The idea must be that we are talking about government action, laws that cut off access of citizens to the “public square,” soapbox, newspaper, chance to be heard, airwaves.

Yes, okay, but what happens when the “public square” is a “digital public square,” and someone – a company or chunk of the communications sector with a near monopoly, like High Tech – blocks access. This is where confusion sets in.

Traditional law says a private provider of some communications venue – to protect those hearing it – can block access if that prevents a crime, incitement, defamation, and similarly dangerous act. But what if …

What if … the venue gets so big, protected by the government – by a specific statute – that it begins to have control (shared by a few, an oligopoly) over the entire “digital public square?” What happens when a medium – like social media giants, protected by the government – becomes less like a medium and more – the venue?

And then, what happens when they begin to use this government-protected power, to block, edit, tailor, refine, promote or demote political speech? Have we not crossed some invisible line? Is this not like the government or a government-protected, maybe even aligned, entity – abridging free speech?

Here is where things get really complicated. Some modern lawyers, reading old laws in the context of old technology, think there cannot be a private entity, even one protected by the government, that should be disallowed from blocking people.

But is that right? A well-known talk show host was just “permanently” blocked from a video forum, controlled by that select group of social media, for his content. A former President was blocked from discussing matters of public concern, for being inaccurate, inflammatory, offensive, and rude. See, e.g., Fox News Host Dan Bongino PERMANENTLY Banned from YouTube; Permanent suspension of @realDonaldTrump.

Is this not the guts of the First Amendment, protecting all that offends? Just ask John or Sam Adams, Jefferson, Madison, Franklin (himself colorful in youth and older years) whether the First Amendment is ever trumped by a statute protecting an oligopoly controlling our public square? The answer would be no.

Here is the current – not yet settled – divide. The law seems to say, until reviewed by the Supreme Court or Congress – that a statute entitling a company to escape liability for blocking speech (and violation of other rights) is permissible. But the First Amendment seems to say, no, that is not so,

In effect, under color of law, with government permission, the offending companies are acting – whether intentionally or coincidentally – to block speech that should be constitutionally protected. 

Interestingly, recent events seem to suggest the American people – their sense of fairness, intuitive understanding of their own rights – is ahead of Congress and the Supreme Court here.

Thus, many citizens have been ritually restricted, blocked, redirected, admonished, and otherwise had their free speech “abridged” – such as the talk show host and president mentioned above.

Interestingly, whether Democrat or Republican, Americans resist this infringement. They do not go along; they are largely opposed. 

While the number opposing social media speech restrictions is likely higher now, numbers were already high in 2019. 

Thus, for example, a major 2019 national survey found an interesting consensus. When asked whether “social media companies violate users’ First Amendment rights when they ban users based on the content of their posts,” a clear majority of 65 percent “agreed that social media companies violate users’ First Amendment rights when they ban social media accounts,” with Republicans saying so 71 percent of the time, Democrats 62. That is a huge consensus. See, STATE OF THE FIRST AMENDMENT SURVEY.

What is the takeaway? The takeaway is – “ask not for whom the bell tolls, it tolls for …” social media and High Tech companies that are – increasingly – restricting rights Americans, of both parties, believe they have. They believe, with good reason, their constitutional right to speak is being eclipsed.

Sometimes people get ahead of the law, and this may be one such time. The Constitution cannot be overridden by a statute, by a popular political position, powerful private party with government-granted control over speech – or any other entity, if the Constitution is to mean what it says.

The most recent case – a talk show host, being blocked for his political opinions tied to election integrity, broader federal accountability, and expression of his views on matters of public concern – is a talisman. Modern social media – and the wider High Tech industry – face a constitutional reckoning. It is coming.