Social Media – Constitutional Calculation – AMAC

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

Legally, the First Amendment guarantees that “Congress shall make no law…restricting free speech.” It seems as simple as it is. That said, bespoke abridgments, tied to specific “time, place, and manner” uses of the speech, have been permitted by the Supreme Court. Think of liability for “shouting fire in a crowded theater”, “inciting violence” or disturbances that compromise public safety.

Now go further. What does “Congress must not” mean? The idea must be that we are talking about government action, laws that cut citizens’ access to the “public square”, to the podium, to the newspaper, to the chance to be heard, to the airwaves.

Yes, okay, but what happens when the “public square” is a “digital public square” and someone – a company or part of the communications industry with a virtual monopoly, such as High Tech – block access. This is where the confusion sets in.

Traditional law states that a private provider of a place of communication – to protect those who hear it – can block access if it prevents a crime, incitement, defamation and an equally dangerous act. But if …

What if… the place became so large, protected by the government – ​​by a specific statute – that it began to have control (shared by a few, an oligopoly) over the entire “digital public square”? What happens when a medium – like the government-protected social media giants – becomes less of a medium and more – of a place?

And then what happens when they start using this government-protected power to block, modify, adapt, refine, promote or demote political discourse? Haven’t we crossed an invisible line? Isn’t it like the government or some government-protected entity, maybe even aligned, restricting free speech?

This is where things really get complicated. Some modern lawyers, reading old laws in the context of old technology, believe that there can’t be a private entity, even one protected by the government, that shouldn’t be allowed to block people.

But is it true? A well-known talk show host has just been “permanently” blocked from a video forum, controlled by this social media select group, for his content. A former president was barred from discussing matters of public interest, for being inaccurate, inflammatory, offensive and rude. See, for example, Fox News host Dan Bongino PERMANENTLY banned from YouTube; Permanent suspension of @realDonaldTrump.

Isn’t that the guts of the First Amendment, protecting anything that offends? Just ask John or Sam Adams, Jefferson, Madison, Franklin (himself colored in youth and older years) if the First Amendment is ever eclipsed by a law protecting an oligopoly controlling our public square? The answer would be no.

Here is the current cleavage – not yet settled. The law seems to say, until it is reviewed by the Supreme Court or Congress, that a law allowing a company to escape liability for blocking of expression (and violation of other rights) is permissible. But the First Amendment seems to say, no, it’s not,

Indeed, under the guise of law, with the authorization of the government, offending companies are acting – whether intentionally or coincidentally – to block speech that should be constitutionally protected.

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

So many citizens have been ritually restricted, blocked, redirected, admonished, and otherwise had their freedom of speech “abbreviated” – like the talk show host and president mentioned above.

Interestingly, whether Democrats or Republicans, Americans resist this offense. They do not get along; they are largely opposed.

While the number of opponents of speech restrictions on social media is likely higher now, the number was already high in 2019.

So, for example, a large national survey from 2019 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% “agreed that companies social media companies violate users’ First Amendment rights when they ban social media accounts,” Republicans saying so 71% of the time, Democrats 62%. That’s a huge consensus. See, STATE OF THE FIRST AMENDMENT INQUIRY.

What’s the takeaway? The takeaway is – “don’t ask who the bell tolls for, it’s tolling for…” the social media and tech companies that are – increasingly – restricting the rights that Americans, on both sides, believe they have. They believe, with good reason, that their constitutional right to speak is being eclipsed.

Sometimes people get ahead of the law, and maybe they do. The Constitution cannot be overridden by a law, by a popular political position, by a powerful private party with government-granted control over the floor – or any other entity, if the Constitution means what it says.

The most recent case — a talk show host, blocked for his political views related to election integrity, broader federal accountability, and speaking his mind on matters of public interest — is a talisman. Modern social media — and the tech industry more broadly — is facing constitutional settlement. It happens.

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