• Social Media Legally Falls Under the First Amendment; Here’s How

    January 18, 2019

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    Posted in: Democracy, Trump

    A court just came close to acknowledging the First Amendment applies to social media. But there is still a lot of ground to cover to protect our free speech rights online.
    In Davison v Randall, a local government official blocked a constituent from an “official” Facebook page. The court held this to be viewpoint discrimination, a 1A violation in a long-recognized category of unconstitutional speech restraint. Advocates like the ACLU and Knight Institute supported the case to bolster the argument Trump cannot block people on his Twitter feed; lower courts have agreed it is unconstitutional under the 1A for Trump to silence his critics this way. The Department of Justice is appealing, and the ACLU is happy to build precedent with smaller cases like Davison v Randall, as the Trump case almost certainly will wind its way to the Supreme Court.

    The ACLU is likely to continue to prevail against Trump. The problem is while narrowly focusing on an individual politician’s responsibility not to block users with unpopular opinions, the courts continue to allow Facebook, et al, to do exactly the same thing on a much larger scale.
    In the age of Trump, social media companies’ suspensions skew against conservative and libertarian commentators (I am permanently banned from Twitter) but Facebook could just as easily block all Sanders supporters, or anyone left handed for that matter. 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 in favor of a narrower one.

    The struggle to grow the 1A to cover social media has a history of piecemeal progress. One victory confirmed the status of social media, when the Supreme Court struck down a law making it a crime for registered sex offenders to use Facebook. Justice Kennedy wrote in Packingham v North Carolina social media is now part of “the modern public square.” Denying access violated the First Amendment.

    But the decision made clear unconstitutional denial still has to come from the government. Facebook and others may deny those speech rights any time they want. The argument only the government is covered by the 1A seems to have reached its limit with technology that so grossly delineates whose literal finger clicks the mouse when the results and implications for free speech in our society 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 to crave the simplicity of the 19th century. That way of thinking requires willful ignorance 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 themselves.

    Except it already happened. Following a hazy intelligence community assessment accusing the Russians of influencing the 2016 presidential election, Twitter and Facebook punished Russian media RT and Sputnik by banning their advertising in line with the government’s position the two did not deserve the protections of the 1A. Senator Chris Murphy got it. He demanded 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.
    It may even seem to some a valid argument in the realm of social media. But when the same proxy idea appears in the flesh, the underpinning seems less acceptable. It is easy to see how the government using federal law enforcement to bar entry to opposition supporters at a town hall meeting held at some theater is unconstitutional. It is equally easy to see 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 currently allowed online.

    The sub-argument 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 public forums. Traditional public forums are places like streets, sidewalks, and parks. Limited public forums are not traditionally public, but ones the government has purposefully opened 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 for comment, the government transforms a private place into a limited public forum covered by the 1A. The Court only requires a “forum” for 1A purposes “to be private property dedicated to public use” or when the government “retains substantial control over the private property.” Like how the government cannot censor public library books even if the library is located in a private storefront. Like a Facebook page set up and administered by the government.

    The most analogous example of how shallow the debate is comes from a technology of the 1980s, one originally expected to change the nature of debate: public access television. Before the Internet, it was envisioned 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 used to produce the programming was privately owned, the programming fell under the 1A. The Court concluded “public access channels constituted a public forum, notwithstanding that they were operated by a private company,” the dead solid 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 held all that power was itself a 1A problem: “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. Pretending Facebook, which claims it influences elections, is just another company is to pretend the role of unfettered debate in a free society is outdated. Technology changed the nature of censorship so 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’s 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 reach now to social media is in line with the flexibility and expansion the 1A has shown historically. 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 the ACLU and other advocates today apply political litmus tests to what speech they will defend. And so they aggressively seek to force the 1A into social media to prevent Trump from blocking users he dislikes, but they have not taken on cases which would force the 1A into social media to prevent Facebook and Twitter from blocking users whose conservative and libertarian ideas upset their own viewpoints.

    The greater First Amendment challenge is thus stymied by politics, even while the problem only grows with the greater impact of social media. 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 Trump is the problem, not the one of access to free speech, will become more obvious.

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  • Recent Comments

    • Rich Bauer said...


      I assume this article wasn’t written for The American Conservative. It blocks my comments all the time.

      01/18/19 1:24 PM | Comment Link

    • Rich Bauer said...


      All in favor of getting the PC police out of our public discourse. We need to know unfiltered on Twitter, FB, etc what someone thinks, regardless of the moderators virgin bias. Item- Trump’s twitter about vague threats directed at that no good Rat Cohens father-in-law shouldn’t be censored. It serves the public good to know we got a Don in the White Power House. Truth will set you free. You voted for this asshole, Amerika. You know… dumb fucks

      01/18/19 9:29 PM | Comment Link

    • Rich Bauer said...


      Pelosi played powerpolitics with Demented by taking away his free speech before Congress. The birdbrain was offered the option to deliver a written speech but he refused. Even he realizes the majority of his idiot supporters can’t or won’t read something longer than a tweet.

      01/18/19 10:47 PM | Comment Link

    • Rich Bauer said...


      Trumpie is throwing in some Trump steaks and a free seminar to Trump University if the Dems pay for his wall.

      01/19/19 4:50 PM | Comment Link

    • John Poole said...


      Bauer: you are sure Putin has something on Trump and thus Trump is compromised and thus beholding to Putin. Trump has an earned reputation for crookedly besting everyone he enters into a business deal with so why is Putin any different from any other rubes who were easily bested by Trump? Trump may have seen Putin and his banking buddies as easy marks. You oversell Putin and undersell Trump. Why?

      01/19/19 6:29 PM | Comment Link

    • Rich Bauer said...



      Putin doesn’t have something on Trump. He has something Trump wants: his Approval for Moscow Trump Tower. And Trumpie will sell US out to get it by
      lifting sanctions, Ukraine etc.

      01/20/19 9:02 AM | Comment Link

    • Rich Bauer said...


      Trumpie is like the It clown who needs to feed on the fears and hate of others to survive. So let US all laugh at this clown as he crawls back into his hole and disappears for good.

      Pelosi: No free speech for you!

      01/20/19 10:22 AM | Comment Link

    • chuck nasmith said...


      Where is the petition for PVB to Join phucked up Twitter (reinSTATE !)? Where is the rule of law and War Crimes thought when the U.S. Africa Command bombs and kills 52+ in Somalia while Israel Bombs Syria for Freedom also? The US senates first concern is Anti BDS and funding 3.8 Billion a year for Apartheid? Is Schumer a dual citizen and a traitor? Have a nice day! Peace… BDS Free Assange and many others. TRUTH is good.

      01/20/19 10:42 AM | Comment Link

    • Rich Bauer said...



      You better hurry, Dorsey is considering pulling the plug on Twitter.

      01/20/19 10:54 AM | Comment Link

    • John Poole said...


      Bauer- will you implode if Trump gets a second term? I won’t. I didn’t for him the first time he ran and won’t for a second term if he runs but I don’t see a Democrat I would want to represent me so I’ll be left in representational limbo- a state that I’ve survived since the 60s.

      01/20/19 3:43 PM | Comment Link

    • Rich Bauer said...



      IF Trumpie is still out of jail and wins another election but loses the popular vote by six million votes or more, I won’t implode. I will be shorting the stock market and stocking my underground bunker.

      01/20/19 7:33 PM | Comment Link

    • Rich Bauer said...


      Free speech truth – money talks and anymore bullshit we walk

      TSA: The focus right now is the Super Bowl. If we don’t get a real check on the 25th, the word is ‘I’m not coming.’ And see what happens then. Everything would come to a halt.”

      01/21/19 9:56 AM | Comment Link

    • John Poole said...


      I’d love a halt to the pollution of our our biosphere from the monstrous jet engine which is even worse than a typical car’s engine. Military flight controllers have not been furloughed- national security you know.

      01/21/19 12:31 PM | Comment Link

    • Rich Bauer said...



      But even they aren’t getting paid. The whores in the Senate better get their act together. Reminds me of George Costanza’s view of pigeons: “We have an understanding. We don’t step on them and they stay out of underfoot.”

      The feds don’t strike because the whores don’t take advantage. That understanding is going to go away in about a week.

      01/21/19 1:43 PM | Comment Link

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