• Facebook and the Public Square

    June 22, 2017

    Tags:
    Posted in: Democracy, Post-Constitution America




    In what is likely to be a more controversial decision, the same Supreme Court session that confirmed hate speech is protected speech also struck down a law that made it a crime for registered sex offenders to use Facebook and other social media.

    Justice Kennedy, writing for the majority in Packingham v. North Carolina , said the web is now part of “the modern public square.” Denying access to it, he wrote, violates the First Amendment.

    “By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge,” Kennedy wrote.

    The case touches on another snowflake battlecry, that private concerns like Facebook are not the government, and thus not subject to the First Amendment. Such thinking is being double-plus used as a work-around to prohibit speech that offends certain groups. So, while say a public university funded by the government must under the First Amendment allow a nazi to speak, a private company like Facebook can set it own rules and prohibit any speech it wishes.

    The importance of the ruling is in its forward-looking perspective. The ruling does not address the question of whether or not Facebook can ban certain speech directly, but does confirm the idea that entities like Facebook, by their size and prominence, take on a larger role in our society (i.e., the “modern public square”) that cannot be ignored. One can easily imagine Justice Kennedy’s opinion used in a future case challenging Facebook or some other private entity’s restrictions on speech.


    And despite the willingness of many to try and dilute the ideas of free speech by citing the public-private divide, the Supreme Court is really doing little more here than enforcing the very old concept that free speech runs deeper than the Bill of Rights. It’s as much a philosophical argument as a legal one, not a bad thing for a nation founded on a set of ideas (and ideals.)

    Free speech in America is an unalienable right, and goes as deep into the concept of a free society as any idea can. Though cited as far back as 1689 in England, the American version of all this was laid out most clearly by Thomas Jefferson, in the mighty Declaration of Independence, where he wrote of rights that flowed from his notion of The Creator, not from government, and thus were fixed. Abetting free speech is an obligation in a democracy in general.

    Jefferson’s invocation of the Creator is understood now as less that free speech is heaven-sent and more that it is something that exists before and after our time. Government thus did not give us the right to free speech and therefore cannot take it away. The First Amendment simply codifies that latter part, laying out like much of the Bill of Rights what the government cannot do.

    So the argument that the First Amendment does not necessarily apply to all speech (such as that which takes place on private property) can be both true and irrelevant at the same time, and the latter is more important.



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    Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

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  • Recent Comments

    • Rich Bauer said...

      1

      Facebook? Is that thing still around?

      06/22/17 7:06 AM | Comment Link

    • Kyzl Orda said...

      2

      Interesting these First Amendment cases seem to crop up in red states mostly.

      This was another one too – involving a VA sheriff deputy who ‘liked’ his boss’s opponent in a political election. FB got involved here too – not sure where the suit stands at this time though:

      http://www.upi.com/Facebook-like-ruled-political-expression/99961379541796/

      06/22/17 11:50 AM | Comment Link

    • Mitch said...

      3

      Facebook has created far more problems than it shall ever solve….

      Facebook also has done more damage to “free speech” than any government ever has…. Or ever will….

      Only thing that surprises me….. That Hillary does not blame facebook as well….

      M

      06/22/17 12:23 PM | Comment Link

    • John Poole said...

      4

      I have one complaint. The “right” to not have to speak should be rescinded (that weird 5th Amendment thingee that is obsolete). Everyone should have to take the stand in their own defense. You would still have the right to remain silent until you have council but once the trial starts- you’ll have to explain yourself in your own words alone in the seat. You would no longer have the right to remain silent.

      06/22/17 12:56 PM | Comment Link

    • Rich Bauer said...

      5

      Yeah, like bullshitter Trumpie having to say he was just bullshitting that Comey better hope no tapes existed of their conversation. Trumpie speaks the truth…that he is and always will be a bullshitter.

      06/22/17 1:16 PM | Comment Link

    • Rich Bauer said...

      6

      Dont go pleading the Fifth, Trumpie, or JP is gonna get angry.

      06/22/17 1:22 PM | Comment Link

    • chuck said...

      7

      Please “Like Me” on Facebook, or whatever. I think I was on for 15 minutes. Keeps telling me to sign in with facial recognition! I hate fake news. TY Peter. Like him on facebook. Tweet me for peace. Buy PVB’S books. Wage Peace…

      06/22/17 1:51 PM | Comment Link

    • chuck said...

      8

      Will there be a point where laws say we have to have a cell phone for our protection? Will we have to vote or be fined? “Imagine” Peace…

      06/22/17 2:03 PM | Comment Link

    • chuck said...

      9

      We need a One State solution. We the People, worldwide !

      06/22/17 3:31 PM | Comment Link

    • Mitch said...

      10

      Rich…

      Its Thursday….. Its a GREEN pill day…. Not an Orange pill day.

      M

      06/22/17 8:55 PM | Comment Link

    • John Poole said...

      11

      Bauer- the 5th is the real refuge of a scoundrel not patriotism.
      The number of people in the Obama administration who took the 5th is quite substantial. And where is Brian Pagliano- Clinton’s IT guy- today? Ah that self incrimination ruse again I guess.

      06/23/17 7:32 AM | Comment Link

    • John Poole said...

      12

      Chuck: it gets easier every day to imagine more tricks of the ruling elite to turn America into a controlled dystopia. Maybe not a DARK CITY scenario but we seem to be headed towards a police state where indeed one will be required to have a working cell phone on one’s person 24/7. For your safety of course.

      06/23/17 8:35 AM | Comment Link

    • Eric Hodgdon said...

      13

      Thanks again Peter

      “Free speech in America is an unalienable right, and goes as deep into the concept of a free society as any idea can.”

      Insisting on our station, that is for each person, as an independent entities entitled to declare the truth that “we” are born with such unalienable rights is held by few of us or rather thought of by less people than there should be by now, that is after all the years since Jefferson penned it so plainly.

      And so the struggle of realizing we are more than what any government is, or tries to declare what, or who we are, continues.

      06/25/17 4:22 AM | Comment Link

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