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What Does Free Speech Really Mean on Social Media?

A court just came close to acknowledging that the First Amendment applies to social media. But there’s still a lot of ground to cover to protect our free speech rights online.

In Davison v. Randall [1], a local government official in Virginia (Phyllis Randall) blocked a constituent (Brian Davison) from her “official” Facebook page. The court held this to be viewpoint discrimination [2], a 1A violation in a long-recognized category of unconstitutional speech restraint.

Advocates for Davison like the ACLU and the Knight Institute supported the case and used it to bolster the argument that Trump cannot block [3] people on his Twitter feed. Lower courts have agreed [4], saying it is unconstitutional for Trump to silence his critics this way. The Department of Justice is appealing [5], but the ACLU is happy to build precedent with smaller wins like Davison, as the Trump case will almost certainly wind its way to the Supreme Court.

The ACLU is likely to prevail against Trump. The problem is, by narrowly focusing on an individual politician’s responsibility not to block users with unpopular opinions, the courts have allowed Facebook, et al, to do exactly the same thing on a much larger scale against ordinary people.

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In the age of Trump, social media companies’ suspensions skew against conservative and libertarian commentators (I am permanently banned [6] from Twitter), even though Facebook could just as easily block all Sanders supporters, or anyone left-handed, if they felt like it. Despite this, and driven in part by the ACLU’s apparent desire to only disadvantage Trump and not enlarge 1A protections in ways that might empower his critics, the broader issues are being bypassed.

The struggle to extend the 1A over social media has a history of piecemeal progress. One victory saw the Supreme Court strike [7] down a law making it a crime for registered sex offenders to use Facebook. Justice Kennedy wrote in Packingham v. North Carolina [8] that social media is now part of “the modern public square” and denying access violates the First Amendment.

But the decision also made it clear that in order to be unconstitutional, the denial [9] has to come from the government. Facebook and others can deny those speech rights anytime they want. The argument that only the government is covered by the 1A seems to have reached its limit in an age when the results of a tech giant limiting speech are exactly the same.

Technology and market dominance complicate the 1A environment by giving greater power to a handful of global companies (currently all American but imagine the successor to Twitter based in Hong Kong with Chinese censors at the helm) even as the law seeks the simplicity of the 19th century. That way of thinking requires you to believe that Facebook would never act as a proxy for the government, unconstitutionally barring viewpoints on behalf of a politician who would not be allowed to do it himself.

change_me

Except that this has already happened. Following a hazy intelligence community assessment that accused the Russians of influencing the 2016 presidential election, Twitter and Facebook punished Russian media outlets RT and Sputnik by banning their advertising. Senator Chris Murphy [10] had demanded that social media censor more aggressively for the “survival of our democracy,” with companies acting as proxies [11] for those still held back by the First Amendment. The companies had done just that.

It is easy to see how the government using federal law enforcement to bar entry to a town hall meeting held at some theater is unconstitutional. It is equally easy to see how the president’s best friend hiring private security guards to do exactly the same thing would not pass a court challenge. Yet that is basically what is allowed online.

The sub-argument that the theater is private property and thus outside the 1A (just like Twitter!) does not hold up. The Supreme Court recognizes [12] two categories of public fora: traditional and limited. Traditional public fora are places like streets, sidewalks, and parks. Limited public fora are not traditionally public, but nonetheless opened by the government to some segment of the public for “expressive activity”—like that town hall meeting held in a private theater.

By inviting the public to Facebook, the government transforms a private place into a limited public forum covered by the 1A. The Court only requires that a “forum” “be private property dedicated to public use” or that [13] the government retain “substantial control over the private property.” This is why the feds cannot censor public library books even if the library is located in a private storefront. It’s why they can’t police a Facebook page set up and administered by the government.

The most striking example of how shallow this debate has become can be found in a technology of the 1980s, one originally expected to change the nature of debate: public access television. Before the Internet, it was envisioned that privately owned cable TV companies would make air time available to the public as “the video equivalent of the speaker’s soapbox.” Even though the channel and equipment were privately owned, the programming still fell under the 1A. The Court concluded [14] that “public access channels constituted a public forum, notwithstanding that they were operated by a private company,” the perfect equivalent of social media.

The faux public-private argument is being double-plus used as a work-around to prohibit disagreeable speech, say, by labeling a conservative viewpoint as hate speech and letting @jack banish it. Millennials who celebrate Twitter not being held back by the 1A believe that power will always be used in their favor. But back to the law, which sees further than the Millennial obsession with Trump. In City of Lakewood v. Plain Dealer [15], the Court of Appeals held that a city ordinance authorizing the mayor to grant or deny permission to publishers to place their news racks on public property violated the 1A, and identified the problem presented by all that power. As the decision made clear, “The mere existence of the licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.”

The once-upon-a-time solution was to take one’s free speech business elsewhere. The 2019 problem is the scale of the most popular social media platforms, near-global monopolies all. To pretend Facebook, which claims it influences elections, is just another company, is to pretend that the role of unfettered debate in a free society is outdated. But technology changed the nature of censorship. That means free speech is as much about finding an audience [16] as it is about having some place to speak. In 1776, you went to the town square. In 2019, that square is on popular social media. Your unknown blog is as free, and irrelevant, as a colonist making an impassioned speech alone in his barn.

Asking for the 1A to cover social media is in line with the flexibility and expansion the law has historically shown. For example, it wasn’t until the post-Civil War incorporation doctrine [17] that the 1A applied equally to the states and not just the federal government. Some private institutions [18] accepting federal funding are already covered by the 1A. The Supreme Court has regularly extended 1A protection to new and non-traditional speech, including nudity [19] and advertising [20].

Facebook and others like it have become the censors the Founding Fathers feared. The problem is that the ACLU and other advocates today apply political [21] litmus [22] tests [23] to what speech they will defend. This stymies the greater challenge, even as social media expands and the problem grows. Yet the cornerstone of free speech, the critical need to have all views represented in a marketplace of ideas, has not changed. One hopes these core elements of our democracy will collide inside the Supreme Court in the near future. If not, the dangers of narrow, short-term thinking, that the problem is Trump and not censorship, will only become more obvious.

Peter Van Buren, a 24-year State Department veteran, is the author of We Meant Well [24]: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People and Hooper’s War [25]: A Novel of WWII Japan. He is permanently banned from federal employment and Twitter.

34 Comments (Open | Close)

34 Comments To "What Does Free Speech Really Mean on Social Media?"

#1 Comment By Fran Macadam On January 18, 2019 @ 2:31 am

Deplatforming is the SJW anti-speech political weapon of choice now. It echoes that long-ago agitation against free speech, the Free Speech Movement, “No free speech for fascists!” That is, those who would disagree. “Hate Speech” becomes no more than speech they hate.

#2 Comment By Dan Stewart On January 18, 2019 @ 4:32 am

There’s unlikely to be any change in the law in time to prevent Facebook, Google, YouTube, Twitter and Patreon et al from exerting significant political influence in the 2020 election. Each have shown themselves to be hostile to conservative voices and increasingly are taking overt steps to silence that speech on their respective platforms.

As much as they try to deny bias, these companies are bastions of far Left ideology, where things like identity politics, intersectionality and third-wave feminism are religious dogma and the utter abhorrence of Donald Trump is near-universal.

Given their obsessive belief that Russia influenced the 2016 election against their icon Hillary Clinton and put the racist-misogynist-xenophobe Trump in the White House, they feel totally justified in using whatever means at their disposal, including the vast social media assets at their fingertips, to influence the outcome of the 2020 presidential election.

Just listen to how the Left talks about Trump, the intensity and depth of their hatred for him. If they believe what they’re saying–and who could doubt it–how can they not view it as the highest moral imperative to keep him from winning a second term?

The question is not whether they’ll “tweak the algorithm,” it’s what wouldn’t they do?

#3 Comment By JonF On January 18, 2019 @ 7:15 am

The first amendment forbids governmental suppression of speech, It does not forbid private entities from having rules of use for their services and enforcing them.

#4 Comment By Andy Myatt On January 18, 2019 @ 8:47 am

I am banned from commenting on Dreher’s blog on this very site.

#5 Comment By muad’dib On January 18, 2019 @ 8:53 am

As much as they try to deny bias, these companies are bastions of far Left ideology, where things like identity politics, intersectionality and third-wave feminism are religious dogma and the utter abhorrence of Donald Trump is near-universal.

There is a problem with a simple solution: get the Koch brothers to finance a “right-wing” equivalent to these companies in the same way that you got Murdoch to create a right-wing propaganda outlet: FOX NEWS.

Just listen to how the Left talks about Trump, the intensity and depth of their hatred for him. If they believe what they’re saying–and who could doubt it–how can they not view it as the highest moral imperative to keep him from winning a second term?

No the highest imperative is to see him impeached, then see him being perp-walked out of the White House. The cherry on to top of that ice cream would be seeing him and his entire family being sent to the poor house by the legal bills he would incur fighting a lifetime prison sentence for treason.

#6 Comment By Matt W On January 18, 2019 @ 9:10 am

You’re talking about 2 different things.

1. Trump is the President. Anything that he chooses to post on Twitter is an OFFICIAL COMMUNICATION from the PRESIDENT. Therefore, all citizens have the right to know what he’s saying. Therefore, he is not allowed block anyone.

2. Nobody has a right to post on Twitter. Twitter is a private company, NOT a public utility. Twitter can block anyone who doesn’t follow the code of conduct.

You can’t demand that Twitter give you anything on “First Amendment” grounds. The First Amendment only applies to the government

#7 Comment By Dario Saric On January 18, 2019 @ 9:44 am

I’m pretty sure that were I to call Peter Van Buren a pedophile who likes to eat Hispanic children, my comment would not be approved by whoever moderates these comments, especially if I programmed a simple bot to reproduce more or less the same comment over and over and over again. But of course, Van Buren’s genius scheme to make the social media sites to drown under an ocean of trolling and porn won’t apply to his own website..

#8 Comment By Sid Finster On January 18, 2019 @ 10:13 am

muad’dib’s argument boils down to “the ends justify the means”.

#9 Comment By Cornel C Lencar On January 18, 2019 @ 10:38 am

Hi Peter,

Just read yesterday a policy note from 1948 by George Keenan on how to organize political war. Have a look at it to see how the old fox wanted to create organizations outside government (but of course, funded by government) to support any resistance against Soviet occupation. I especially liked an edit there, on its first page: the “to further its [government’s] influence and authority and to weaken those of its adversaries” section is edited out.

So there you have it.

#10 Comment By McCormick47 On January 18, 2019 @ 10:42 am

If I build a theater, I get to decide who gets the stage. Quit whining and build your own theater.

#11 Comment By Doom Incarnate On January 18, 2019 @ 11:26 am

Just as TAC has no obligation to post my comments (and hasn’t for months), Facebook et. al. have no obligation to host anyone else’s speech.

Why you folks continue to fail to note this significant distinction is beyond me.

The internet is open to anyone to post your speech. Go for it. No one else needs to host it.

#12 Comment By Rabiner On January 18, 2019 @ 11:44 am

This isn’t a constitutional issue. A company can decide who can and can’t utilize their products. A social media company deciding who can use their social media platform is of their choice. A government official precluding citizens from petitioning them via that social media platform is a violation of the constitution since it is a government employee determining what speech is heard.

#13 Comment By b. On January 18, 2019 @ 12:07 pm

“The once-upon-a-time solution was to take one’s free speech business elsewhere. The 2019 problem is the scale of the most popular social media platforms, near-global monopolies all.”

So the proper solution might largely be found in rigorous enforcement of anti-trust legislation and its restoration and extension – something the author carefully avoids to discuss.

#14 Comment By Olga On January 18, 2019 @ 12:45 pm

Are Facebook and Twitter private companies and this “people” that can associate with anyone that they want or are they becoming like “the phone company” or “the town square” and blocking people is a violation of speech? Facebook is very strict on nudity so even support groups for breast cancer survivors have been banned. Yet, parents don’t want their children to find porn on Facebook. It is hard to know where to draw the line.

#15 Comment By Mario Diana On January 18, 2019 @ 1:00 pm

The argument that only the government is covered by the 1A seems to have reached its limit in an age when the results of a tech giant limiting speech are exactly the same.

The most dangerous thing we can do is conflate government power, which is the power of physical force, with economic “power.” As odious as it is, whatever Facebook is doing is not a First Amendment issue. Only the government can effect censorship, properly speaking.

#16 Comment By JohnInCA On January 18, 2019 @ 1:10 pm

If y’all want to make the claim that the government should seize Facebook and Twitter and run them as public forums, go for it.

But until that happens, and so long as those private services require registration? Then they remain private companies with ultimate control and privilege of censorship.

So either fess up to what you really want, or accept that being on Facebook is contingent on Facebook’s good graces.

#17 Comment By grumpy realist On January 18, 2019 @ 2:02 pm

I take it that Mr. Van Buren does not have a law degree….? Otherwise he would have refrained from writing an essay which would be debunked by any first-year law student. (And no, “we should have applied the Constitution differently” is not a sufficient argument. I despair at the number of people who continue to argue according to a Platonic ideal of a U.S. Constitution in their heads. History is different–deal with it.)

#18 Comment By Jeeves On January 18, 2019 @ 3:04 pm

To me, this is another version of the “You Didn’t Build That” rationale. Or a kind of eminent domain in the name of free speech. Or perhaps a unique Sherman Act remedy. It leaves a bad odor. The giveaway is that, of all people, Justice Kennedy is supposed to guide our thinking.

#19 Comment By Specimen65 On January 18, 2019 @ 3:57 pm

Given the known degree of “entanglement” between the government and these tech companies, it should be challenged that it is the government/public officials doing the censoring, by proxy.

If Big Tech and the government are in fact conjoined at the hip, then this could well be a violation of the 1st, despite the “private platform” arguments)

(we already know about Google’s entanglement as they have been getting seed money from DARPA since the late 90s. And their executive Eric Schmidt’s connections to the Hillary Clinton campaign and subsequent expressed outrage over the outcome of the 2016 election, and subsequent banning of “alternative media” voices from its platform)

#20 Comment By A Bridge On January 18, 2019 @ 4:11 pm

I don’t have an emotional dog in this fight. Despite the undeniable existence of a manipulative monopoly of perception, in the long run little can stem a society’s penchant for self-sabotage; this is a symptom, not the disease.

—- That said, I wonder if this holds any water —-

You write:

“Justice Kennedy wrote in Packingham v. North Carolina that social media is now part of “the modern public square” and denying access violates the First Amendment.”

But the decision also made it clear that in order to be unconstitutional, the denial has to come from the government.”

I tend to agree with this, and clearly for it to be a 1A violation requires congress, and only congress, be the transgressor.

[ I suppose it is now assumed “congress” is interchangeable with “government”, but as a non-lawyer I’ll take that as settled law atm. I will indulge to note my idiosyncratic opinion that:

The Text of 1A affirms the existence of a Right to freedom of speech (as a courtesy – as if it needed affirmation in a civil society), and Logic itself demands this freedom not be unbounded. The fact that courts cite the 1A as the sole repository of the People’s Liberty to Speak is disappointing and annoying to me, but I’m a moron and digressing. ]

Imo, the key word is “abridge”: to shorten.

[***] It should be noted at this point that “to expand” is NOT “to shorten”. Their intersection is null (assuming expansion of one protected entity is not contraction of another).

You then go on to say:

“Facebook and others can deny those speech rights anytime they want. The argument that only the government is covered by the 1A seems to have reached its limit in an age when the results of a tech giant limiting speech are exactly the same.”

But the 1A only inhibits government right? It is not intended to police the public square.

“By inviting the public to Facebook, the government transforms a private place into a limited public forum covered by the 1A.”

I don’t understand this sentence as written (by Facebook’s action… an action by the government follows?), but I think u maybe meant to have “Facebook” in place of “government”, or maybe here is where you are trying to make a leap to classify Facebook’s actions/denials as merely proxy for government’s; because you then go on to say:

“The Court only requires that a “forum” “be private property dedicated to public use” or that the government retain “substantial control over the private property.””

Imo, that leap is a bridge to far. Anyway, jumping to the end, If I understand correctly, you are arguing that:

a) “social media” should legally constitute a “public forum (under substantial government control)” and thus falls under 1A,

AND/OR

b) 1A needs reinterpretation/alteration to interpret the actions of the “social media” to be that of government.

Hmm… interesting argument, if I understand correctly.

—- Let me approach the same objective from a different angle:

First, if we take Kennedy’s opinion that social media is now part of “the modern public square”, let us pause and examine what was a “public square” for a moment.

Notice, specifically, that in a literal public square the only way to SUPPRESS literal SPEECH is through PHYSICAL FORCE. This is important because PHYSICAL FORCE can be classified as ASSAULT, if it’s not defensive in nature.

Now if it is the police (the Law) applying the force, and depriving someone from their ability to be heard, we assume this is Sanctioned by Law; if it is not then this would definitely be a violation of the People’s Right to Freedom of Speech (i.e. totalitarian).

[ It is worth noting here that the Law already claims social media as being under purview, as they have pursued, in person, to investigate certain speech (threats, etc…) for violations of law (crimes). ]

However, if the PHYSICAL FORCE to SUPPRESS SPEECH, were applied by a private individual, this could most definitely be classified as ASSAULT, and subject to criminal action upon the suppressor.

So you see, speech was naturally ‘protected’ in the “public square” already.

The proper way to address unacceptable speech is/was to call the Law. Of course, it begs noting that people no longer accept consequences being dealt out in situ as “just” and deserved [**] – IYKWIM.

— So,

If we’re are to graft this old concept onto the “digital public square”, as Kennedy suggests, we must take account anew:

A) Law enforcement (government resources) can no longer be relied upon to promptly police every digital exchange due to the sheer volume and complexity.

B) Suppression of SPEECH can now take NON-PHYSICAL forms, so the previous natural protections (from ASSAULT) are no longer present (as DoS* (denial-of-service) is not a crime prima facia).

[*] { It is very, no, ___extremely___ noteworthy here that there is a current case alleging that denial of the service of baking a cake _IS_ a violation of Civil Rights – but let’s not get sidetracked again… }

Moving on…
So, possibly, here is where I think your argument might splice in, as it propose to construe the actions of the service provider as those of government.

— But I’ll take another fork in the road. Let’s go back to what happened to the natural protection that was lost; as clearly this was an inherent part of the mechanism as understood in the past, and integral to its functioning.

I’d afford the private company the prerogative to serve whom it chooses to; I enjoy the existence of this LIBERTY. Nonetheless, we clearly ‘now’, as per A) above, rely on, and allow, the private provider to perform some censorship in this new “digital public square” to ensure the continuance (see [**]) of civility and decorum in public speech – which we all cherish (evidenced by: media + politicians).

With this ‘new’ reliance in mind, let’s note there are laws against “hate speech” (whether you like them or not) so it is not beyond the provider’s ‘new’ responsibility to enforce common laws through their Terms of Service.

At this point in my diatribe it may seem we have arrived without aide at the same point of vulnerability to the whims of a provider’s discretion which we initially set out to address.

—-

However, there is indeed aide. We have new perspective knowing the natural protections of the “public square” that did not translate digitally. It is those we wish to reinstate; this bears with it a Mandate.

This Mandate is to enforce that suppression of lawful speech in the “public square” being punishable by Law.

If Kennedy is correct, and social media is “the modern public square”, then it is manifestly under the Jurisdiction of Law.

The Constitution empowers Congress (government) to legislate that Suppression of Speech under its Jurisdiction be punishable by Law.

Note that this is “expanding” otherwise abridged speech – so is in fact the exact opposite of what the 1A restricts – which is perfectly constitutional, and aligned with the principle of liberty.

— As a non-lawyer I’ll hesitate to propose legal wording but it need not be long; something like:

“Suppression, denial, or preferential exposure of Political speech, not otherwise infringing on Civil or Criminal Code or Statute, within Public Forums not composed solely of Physical Proximity, such as residing on but not limited to the Internet, shall be punishable by Law, with penalty determined by the FCC, and all legal fees of the adjudicated party shall be the liability of the unadjudicated party.”

A law along this vein would move the Discretion of what is Suppression of Political Speech from the private company to the courts. This is what the courts are for, and I think something like this is a better road to take than messing with the First Amendment.

The “loser pays” part is essential I think. After a few big losses I’ll wager those companies will shape up right quick.

#21 Comment By Ken T On January 18, 2019 @ 4:40 pm

So distilling all this down to the bottom line, what you are in effect calling for is the resurrection of the Fairness Doctrine, and for it to be applied to social media. Well, OK, I can accept that – as long as it is reapplied across the board to ALL forms of media – yes, including your beloved Fox News and Sinclair Broadcasting.

Deal?

#22 Comment By JohnInCA On January 18, 2019 @ 5:15 pm

@A Bridge
Okay, there’s a lot to unpack there, so I’m not going to try. Just going to zero in on one thing:

[…] let’s note there are laws against “hate speech” […]

Not in the US there isn’t.

#23 Comment By Kevin J Shannon On January 18, 2019 @ 8:07 pm

This US Supreme Court and California Supreme Court decision (Pruneyard case) applying to open forum shopping centers has clear application for free speech rights on private, non governmental properties like social media based on State Constitutional free speech rights.

“…Under the California Constitution, individuals may peacefully exercise their right to free speech in parts of private shopping centers regularly held open to the public, subject to reasonable regulations adopted by the shopping centers
under the U.S. Constitution, states can provide their citizens with broader rights in their constitutions than under the federal Constitution, so long as those rights do not infringe on any federal constitutional rights
This holding was possible because California’s constitution contains an affirmative right of free speech which has been liberally construed by the Supreme Court of California, while the federal constitution’s First Amendment contains only a negative command to Congress to not abridge the freedom of speech. This distinction was significant because the U.S. Supreme Court had already held that under the federal First Amendment, there was no implied right of free speech within a private shopping center.[3] The Pruneyard case, therefore, raised the question of whether an implied right of free speech could arise under a state constitution without conflicting with the federal Constitution. In answering yes to that question, the Court rejected the shopping center’s argument that California’s broader free speech right amounted to a “taking” of the shopping center under federal constitutional law….”

[26]

#24 Comment By Lee Green On January 18, 2019 @ 9:35 pm

“Just as TAC has no obligation to post my comments (and hasn’t for months), Facebook et. al. have no obligation to host anyone else’s speech.

Why you folks continue to fail to note this significant distinction is beyond me.”

It’s not hard to understand at all, if you understand the psychology of motivated reasoning. The same people who will insist that private companies be forced to host their speech will turn around and insist that private companies have every right to regulate their employees’ speech, or deny service to members of the public based on their religious beliefs.

Their concept of rights is quite expansive in regards to their rights, and very narrow in regards to others’. If a private company such as FaceBook can’t refuse to host your speech, then a private bakery can’t refuse to serve gays. Sauce for the goose is sauce for the gander.

I can respect a wide range of beliefs with which I disagree, even quite strongly, but I cannot respect hypocrisy.

#25 Comment By Stefan On January 19, 2019 @ 8:04 am

Trying to make online public spaces (public as in accessible to the general public, not as in public ownership) like Google, Faecesbook and Twatter into responsible stewards of democracy will only further inflate their unwarranted influence and legitimacy among the chattering classes. The preferable alternative is to spray kerosene on the flames of the dumpster fires they already are. The kakistocrazation of the media will ultimately not be reverted by policy, but by the fact that Moore’s “Law” (sic), the observation that the number of transistors in a dense integrated circuit doubles about every two years, thereby making computation cheaper indefinitely, will cease to hold true. Processing, storing and transmitting data in electronic form will become far more expensive than it currently is, thus radically altering the political economy that has been built on cheap computation. It will be nigh impossible for anyone but the sharpest minds and the most compelling orators to get an audience beyond the office water cooler, rendering debates over democratizing online public spaces purely pedantic.

#26 Comment By EliteCommInc. On January 19, 2019 @ 8:58 am

I think the central question is whether the digital or media forum is a public arena in lieu of a town hall meeting setting or one of pribavte individuals.

If the forum is that concerning a private entity or group, even tax exempt groups, I think the “free speech” assail does not apply. TAC, UNZ, or other forums funded by private dollars can and do censor as they fit. A public invitation does not by definition grant me the right to speak. They have an agenda and should I interfere with that agenda —

That would not be the case if said forum was one involving public participation for the purpose of government. Under those conditions, censorship blocking, tailoring the comments in any manner so as to mischaracterize, or blight the same is unconstitutional.

The answer to censorship outside the political sphere involving governance has been to create alternative avenues of expression. It’s akin to freedom of association. The fact that corporate giants in the arena exercise their authority over free speech is not cause enough alone to prevent their censorship. That Facebook, Google, Twitter are hostile to my views and their wealth and power are used to limit said expression is just how the real world operates regarding private ownership.

I think the greater challenge here is the governments protection, and fostering these large orgs while stifling the the financial interests of others to be players. That’s the real violation, governments role in supporting financial agencies of its liking — even when that organization is engaged in monopolistic behavior — that is the larger threat to democracy.

The greater insidious threat to “freedom of expression” the protected share these organizations have over the market and governments role in assisting their control of the same.

#27 Comment By EliteCommInc. On January 19, 2019 @ 9:02 am

“In 2019, that square is on popular social media. Your unknown blog is as free, and irrelevant, as a colonist making an impassioned speech alone in his barn.”

I just don’t the argument that just because my opposition has a barn with a larger audience intitles me access, unless that barn is expressly for the purpose of entreating public participation to a government end, i.e, Townhall meeting.

#28 Comment By henri On January 19, 2019 @ 1:30 pm

Shouldn’t this argument be limited to about whether social media can ban speech on pages that are “of government” or whether those agents of government using social media can ban their unfriendlies?

That would seem to simplify it some at least.

However, all of this is a complete waste of time and shows the total lack of realism and discernment of the people of this nation.

The apparatus of social media provided by these siren servers, and their billionaires – for free – offers a very low-quality form of communication.

It is powerful in its way but it is very low quality communication. Neither by intent or infrastructure do/did these platforms offer anything more than “speech”.

Speech is meant to inform deliberation which is meant to inform action all of which requires qualities, and a quality, of communication impossible in this particular public square (at least without like-minded people leaving it at some point to move on to their next stage).

People can have all the voice they want, and these platforms can deny that voice to whomever they please, and the lawyers can have a field day. Victories can be won and lost; and you know what?

It won’t make a bit difference, none whatsoever, because these platforms were never built to make a difference!

They were meant to keep people busy,self-important and deluded; they have succeeded famously! (their own words)

Though this has been clear from the beginning, or soon thereafter, the people who claim to love liberty nevertheless embraced these essentially infantile platforms as much as the people who love the Kardashians did.

Whatever power that lies within the citizenry was immediately handed over to these private businesses while people busied themselves with their petty arguments, and egos that the lawyers, justices and Tech giants alike were and will be only too happy to exploit.

RIP!

#29 Comment By Mr. Morningstar On January 19, 2019 @ 2:43 pm

Have conservatives ever bothered to actually read the Constitution they claim to love so much?

#30 Comment By A Bridge On January 19, 2019 @ 3:54 pm

—- 1/19

@Ken T

I know your not replying to me but since I’m replying to John, I will conceit-fully reply to ur comment as well. I hope you don’t mind. (In fact, I’ll comment on almost every comment so as to procure my daily dose of self-importance.)

The key word is: “Public Forum”

I am dispassionate on all of this. I was just impelled from the opinion of Kennedy on what is a “Public Forum”, and the action taken to dis-allow “blocking” by government officials, and applying “goose” to that gander

If the Judicial Branch chooses to interpret, or the Legislature legislates, that Broadcast Media Channels are to be a “Public Forum”, then so be it.

@JohnInCA:



….. Just going to zero in on one thing:
[…] let’s note there are laws against “hate speech” […]
Not in the US there isn’t.

Ok, thank you for edifying. I’ll take your word for it.

I should have noted a disclaimer saying I did not visit webpages or research any statements made in my “diatribe”. It was just off the cuff – and I was indeed aware that the statement above may be specious when I wrote it – but the “sentiment” is out there. I had typed too much already (~ >1 hour cause I suck at english) and just wanted to share an idea. But I do appreciate you pointing out that facts for the benefit of other readers. Thanks again.

So, ADDENDUM to my comment: caveat emptor

@Lee Green

If a private company such as FaceBook can’t refuse to host your speech, then a private bakery can’t refuse to serve gays. Sauce for the goose is sauce for the gander.

See my reply to Ken T above – re: “What is a Public Forum”.

If a bakery is to be a public forum then so be it. I couldn’t care less.

I’m typing as I read down…. I suggest refer to @EliteCommInc.
This person is clearly more knowledgeable and well spoken on the issue than I.

The answer to censorship outside the political sphere involving governance has been to create alternative avenues of expression

I agree with this. This is, and has been, my personal view as well. I was just messing around; putting on hats.

Again, Elite @January 19, 2019 at 9:02 am:

I just don’t [buy] the argument that just because my opposition has a barn with a larger audience intitles me access, unless that barn is expressly for the purpose of entreating public participation to a government end, i.e, Townhall meeting.

I could not agree more; not that my opinion matters.

I for one appreciate your clarity and contribution to this public forum thread.

#31 Comment By Rosenkrantz On January 19, 2019 @ 11:28 pm

I wonder why the author of this piece, Peter van Buren, is permanently barred from federal employment now. Banning from Twitter is a badge of honor, but federal employment?

Anyway he makes good points here. We can hope this boomerangs on the left in SCOTUS. Another angle to this is antitrust. Is Facebook so big that it suppresses competition? Obviously so! I can start my own MugBook, but nobody will go to it because everyone else is on FaceBook.

#32 Comment By peterw On January 20, 2019 @ 12:49 pm

People say a lot of dumb things on this issue. Sure, if we take literally the property rights of corporations, they are free to refuse to allow any speech they wish. But who’s going let them get away with that??? It would be like UPS and Federal Express refusing to deliver packages to Republicans. Once upon a time it was urged that property rights allowed employers to hire as they wished and refuse service to any customers they wished. We no longer allow that where the excluded are defined by race, religion, or sex, but why allow it in the case of political views (which btw overlap with religion)? The only reason someone would support this is that they think their side will be doing the excluding. But that’s plainly unsatisfactory in terms of ethics.

#33 Comment By Siarlys Jenkins On January 21, 2019 @ 3:33 pm

I take it that Mr. Van Buren does not have a law degree….? Otherwise he would have refrained from writing an essay which would be debunked by any first-year law student.

Some first year law students can be pretty ignorant. So can some barred attorneys, and even federal district judges. The law is not the exclusive province of attorneys, nor is government the exclusive province of experts.

Technology and market dominance complicate the 1A environment by giving greater power to a handful of global companies

The more ubiquitous a produce or service becomes, the more essential to life it is to have access to it, the more availability is centralized to a monopoly, natural or otherwise, the more the private company providing the good or service takes on the characteristics of a public utility, and must be regulated as such.

JonF is being terribly obtuse to overlook this.

Among other abuses of “private sector” discretion:

Yes, you have the legal right to register and vote, and federal registrars ready to serve you if the local clerk’s office is uncooperative, but, if you register or vote, you will be fired from your job, evicted from the land you farm, denied service by every fuel supplier in the county, etc.

Abuse is abuse.

It would be like UPS and Federal Express refusing to deliver packages to Republicans.

Indeed. Or Communists.

If a private company such as FaceBook can’t refuse to host your speech, then a private bakery can’t refuse to serve gays.

A baker already can’t refuse to serve gays. Were you referring to a baker accepting a commission to design and produce a special cake celebrating a specific event? That would make your argument apples and oranges. First, “hosting” private expressions and conversations is different from providing an individual product. The telephone company can’t cut off my service because it disagrees with what I say to the person on the other end of the line.

Second, there are lots of bakeries to choose from, there is not a monopoly or anything close to it. Third, its not Facebook’s speech or expression, whereas the baker is being asked to personally design the message.

I would agree that Mark Zuckerberg has no obligation to personally endorse whatever I may choose to post on Facebook. He can also withhold Facebook services normally available to “help” me design and craft my message. He just can’t block me from posting it unless its actually a violation of law, such as threats to kill someone, pornography, etc.

#34 Comment By Egypt Steve On January 21, 2019 @ 9:32 pm

OK, your right to have your ideas broadcast supersedes the rights of Facebook and Twitter to control their own platforms and decide which ideas they want to disseminate thereby, and the government should intercede to make sure your rights are vindicated. So, why doesn’t a gay couple’s right to service from any business that serves the general public supersede the right of a baker to control his or her own “creative expression”?