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Social Media – Constitutional Reckoning

Posted on Thursday, February 3, 2022
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by AMAC, Robert B. Charles
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17 Comments
Supreme Court

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.

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DonS
DonS
2 years ago

Thank you RBC! Great points presented.

As holder of the FCC’s Amateur Radio license, it was established years ago with “hams” under gentlemen’s agreement not to discuss sex, religion and politics on the air.

However, a group on a high frequency radio band I was a member of all agreed to discus any topic provided that we agree to disagree in a civil manner towards each other. This philosophy worked very well and our group grew because we were very civil and respectful towards each other. Our leader of this group made it clear that we all have Rights under the 1st Amendment with the understanding that we ARE RESPONSIBLE for what we say!

It was amazing of the many hams who joined our group because of the very wide range of topics we discussed, debated and made many great, long lasting friendships!

PaulE
PaulE
2 years ago

RBC,

You lay out the overall issue quite well. What the federal government has permitted to occur in the so-called social media space (essentially public forum broadcasting in the digital world), via either a lack of properly crafted legislation, intentional empowerment of certain political perspectives for political gain or simply general lack of foresight which is not unusual when it comes to politicians, is institutionalized control or limitation of speech in this country. As long as an individual or group espouses views that are consistent with what those controlling the medium want to hear or promote, they are permitted to post virtually anything they want with little to no barriers. However, as soon as an individual or group deviates from this rigidly enforced personal set of views the owners / operators of these platforms want promoted, those individuals or groups are either censored, deleted or permanently removed from having access to the privately owned forum that the federal government empowered in the first place.

I agree with you that ultimately this issue will be addressed, one way or another, by the Supreme Court. Since it is quite clear Congress has no serious interest in wading into an issue, that they created in the first place. To a majority in Congress, this has become nothing more than a disposable campaign issue to be trotted out every few years. Brought up to rally voters and then quickly forgotten after the elections pass. Holding a series of congressional dog and pony show hearings on a periodic basis, without following up with the necessary legislation passed by Congress to correct the problem, does nothing but waste taxpayer dollars and time.

I don’t quite share your optimism however that the Supreme Court will provide the solution many on our side desire. That being some means to force privately held social media businesses to operate in a completely neutral manner. The most expedient way to achieve that goal is via a complete repeal of Section 230, which would strip legal immunity from these companies and open them up to an endless stream of lawsuits challenging the current censorship standards being used and force disclosure, via the legal discovery process, of how the censorship processes are designed and implemented at each of these social media companies. That would substantially impact their earnings and bottom line, which would bring pressure from the shareholders of these companies for some real change to stop the financial impact. Not to mention also show that the leaders of these companies have all lied under oath to Congress at one point or another on this matter. That solution has to come from Congress, not the Supreme Court, which as I have already said has no real interest in fixing their mistake.

George Washington's Admirer
George Washington's Admirer
2 years ago

Let’s just call it Groundhog Week! Waking up in February 2022 is a unique experience. The First Amendment to the Constitution being twisted and contorted; today, counterclockwise. Ask yourself the following question: Why is Facebook Stock down 20% or so, give or take? You know what the mainstream media won’t tell you. Don’t You? Hundreds of Thousands of Truckers for the past week headed to Canada; (What Trudeau calls ‘fringe’, racists, & misogynists, and not really representative of the Canadian population.) Well, Facebook being in cahoots with all the traditional people; who ‘think’ correctly; has condemned the truckers off their website. So, that is just one of the first interesting things to start the day. Not, that a lot of people give a care about Facebook anyway! Gee Whiz Facebook is so important politically that they could literally drop the Stock Market a good 20%. That is a lot of power for a company!… So, the next question, is: Why is Facebook so entrenched in political opinion? Oh, and by the way: Did the legislature give authorization for the moving of thousands of troops to the Ukraine? So many questions? Oh, and one more question: Who has the defense contract for the Ukraine move? This is more complicated than a professional game of Chess!… God Protect This Country!

Bill T
Bill T
2 years ago

Facebook and Twitter completely crossed the line during the last election, They canceled anything and anyone who they wanted to prior to the election. The hunter Biden lap top evidence was overwhelming and was not discussed or even a story with them. We now have a corrupt and compromised POTUS who is literally destroying our country and if not stopped will transform our ways as a free and law abiding country overnight.

Stephen Russell
Stephen Russell
2 years ago

Bust it, Break it UP like MaBell
Or Std Oil then
Sell it off

Lynn
Lynn
2 years ago

According to the movie about Facebook, it was started by Zuckerberg to defame/smear a female who rejected him when they were students as Harvard. It was started by hate and snowballed into the twisted, grandiose and megalomania vision of an evil guy.

Centurion
Centurion
2 years ago

Section 230 protects social media from law suits as long as they remain a venue or platform. When they inject themselves into the discussion and start censoring, they are no longer a venue or platform. They are now a publisher and section 230 no longer applies to them. Let the law suits begin.

Mario Capparuccini
Mario Capparuccini
2 years ago

The hypocrisy is clear for all to witness. President Trump and Mr. Rogan are banned from Twitter but officials of the Taliban and Ayatollah Khomeini of Iran are allowed to keep their Twitter accounts. Social media needs to be broken up because of their monopoly. I am glad that Facebook lost 230 billion dollars of stock market value on 2/3. Maybe they will heed the judgment of the Almighty upon them. Oh, I forgot. They think they are the Almighty.

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