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, 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, 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 people on his Twitter feed. Lower courts have agreed, saying it is unconstitutional for Trump to silence his critics this way. The Department of Justice is appealing, 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.
In the age of Trump, social media companies’ suspensions skew against conservative and libertarian commentators (I am permanently banned 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 down a law making it a crime for registered sex offenders to use Facebook. 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. 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.
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 had demanded that social media censor more aggressively for the “survival of our democracy,” with companies acting as proxies 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 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 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 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, 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 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 that the 1A applied equally to the states and not just the federal government. Some private institutions 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 and advertising.
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 litmus tests 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: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People and Hooper’s War: A Novel of WWII Japan. He is permanently banned from federal employment and Twitter.