Constitutional Free Speech

The First Amendment of the U.S. Constitution says that America’s government cannot limit peoples’ right to speak freely.  The government cannot censor speech (other than criminal speech) and it cannot regulate the right to say, or not to say, whatever an American wants to say … or not to say.  That’s the American definition of freedom of speech.  It’s unique.  When people in other countries talk about freedom of speech, they mean something different.  Americans, and not the American government, therefore are solely responsible for determining what is said within their own homes, their own offices, and their own businesses … without government interference.

A week ago Friday, Twitter Inc., a public company, did exactly that.  It announced that it would “permanently suspend” President Trump from its social media platform for violating its “Glorification of Violence” policy – that is, Twitter decided not to allow President Trump to use its business podium to communicate with speak to his audience based on its independent determination that the President had violated its in-house internal Twitter rules.  A broad spectrum of Trump supporters, as well as a fair number of foreign political leaders, denounced the suspension, most of whom have argued that such action violates President Trump’s inalienable right to free speech.

There is no such inalienable right …, certainly not in the United States.  In fact, the only inalienable right in America is the right of a person to think and say whatever he wants (as long as doing so doesn’t cause physical injury to others (such as shouting “fire” in a theater)).  Free speech in America includes the right of each person, and each business, to reject and functionally delete others’ speech on his or its own property.

TLR’s recent discussion of “America’s Media Watchdogs” focused, in part, on the First Amendment’s prohibition of government interference in Americans’ free speech right.  That Second Amendment protection of Americans’ right to speak freely is peculiarly distinctively American.  No other country provides the same level of protection …, and that level has been of enormous benefit to the U.S.  America’s brand of freedom of speech has propelled the unrestricted flow of information that has lubricated America’s democracy, its culture of individualism, its economy, commerce and innovation, and its exceptional (and exceptionally successful) brand of capitalism.  In America, short of criminality, a person or a business can say whatever he or it wants, and reject, dismiss or ignore whatever others say, without fear of government reprisal.  The American government doesn’t referee truthfulness or parse fact-from-fantasy.  That function is left to individuals and businesses, a further bow to America’s frontier independence, its basic belief in the capability of every American to be a master of his right to listen, to self-determine and to adhere to his own beliefs.  The U.S. government doesn’t require conformity.  It isn’t Big Brother.  It doesn’t employ Thought Police.  Not America.

Other countries have a different ethic.  European democracies generally take a paternalistic approach to restrict hate speech as well as views that veer too far from the majority … at times banning signs of political, philosophical and religious beliefs (such as the hajib).  That contrasts sharply with the breadth of America’s free speech right, a right exemplified by the Supreme Court’s decision in National Socialist Party of America v. Village of Skokie that allowed members of the American Nazi Party to march through a Jewish neighborhood and prominently display swastikas.  The Supreme Court explicitly extended that right to the media in New York Times v. Sullivan by holding that the media are not responsible for the accuracy of what they report unless their reporting is tainted by “actual malice.”  The meaning of Sullivan is that partisanship and prejudice are Constitutionally-protected, as today’s media outlets make abundantly clear.  The media have no obligation to seek truth, speak truth or publish truth … or fairly air differing views.  They simply have an obligation not to disseminate lies with “actual malice.”  Freedom of speech and of the press accordingly are assured in America.  The media are, indeed, America’s Watchdog.  And, of course, there is no such freedom in undemocratic societies such as China, Russia, Iran, Saudi Arabia, Egypt, Cuba, Turkey, Venezuela, North Korea, etc., etc., etc.

Freedom of speech is seen differently outside the U.S., which has led some other countries’ leaders to decry Twitter’s actions.  German Chancellor Angela Merkel has called the suspension of President Trump’s Twitter account a breach of the “fundamental right of free speech.”  Ms. Merkel believes that the U.S. should follow Germany’s lead in enacting laws that restrict online incitement rather than leaving those determinations to the laissez-faire decision-making processes of businesses such as Twitter, Facebook, Google and Apple, highlighting a key area of philosophical disagreement between America and Europe.  Germany’s position was echoed by France:  “Regulation of the digital arena is a matter for the sovereign people, governments and the judiciary,” once again framing Europe’s preference for government control and its resistance to devolving decision-making to private industry …, but that hasn’t been the American Way.

Russia and China, too, understandably favor government control.  Purposefully misreading the U.S. Constitution’s freedom of speech protection as an inalienable government power to control speech, Vladimir Soloviev, one of Russia’s premier propagandists, condemned the move by Twitter, stating:  “So it is argued that the US Constitution is lower than the internal documents of the Twitter company?”  China’s Communist Party newspaper, the Global Times, concluded that Twitter’s action “of course goes against the freedom of speech the U.S. political elites have been advocating.”

There are any number of Americans on both the left and the right who also believe that the protections of free speech contained in the Constitution should be limited.  Those on the left are dismayed by the fact that social media are manipulative, intent on impinging on individuals’ privacy, and that their goal is not to benefit the public but to lure eyeballs and create an addiction to their content …, because doing so maximizes their profit.  Those on the right are incensed by the perceived partisanship of what they see as a left-leaning social media – and yet that partisanship is also present in print and visual media, whether Fox News or Breitbart News or the New York Times or the Huffington Post, etc., etc., etc. – and argue that their actions are tantamount to censorship of “real news.”  Both extremes advocate policing the media, calling subvertly for censorship and government control regulation …, which have been anathema to American commerce and, for many, to American values.  The U.S. Constitution prohibits censorship and ensures a “free press” – which includes a free media (free, that is, as long as media operate without “actual malice”) – and free speech – which includes the right of companies to make their own decisions on what is acceptable content in their businesses and what is not.  Perhaps the question that is being framed is whether there should be a Constitutional divide between social media and print/visual media?  But why?

An influential critique of social media from the left is found in a 2020 documentary-drama titled The Social Dilemma, which examines the ways in which social media companies, particularly Twitter, Facebook, Apple and Google, have manipulated their users through surveillance capitalism and data mining in ways that undermine society.  The Social Dilemma argues that social media’s profit-goal needs to be tempered by societal need in order to minimize political extremism and political polarization.  The implicit solution advocated by The Social Dilemma is for government intervention and regulation of social media content by treating social media as a public utility.  (Readers might recall that governments have had very limited success in regulating airlines, railroads, rental apartments, etc., etc., etc.)

The cry for regulation of social media is not limited to those seeking a less capitalist profit-driven American media.  President Trump (among others) has argued for increased government control, advocating a rewrite of Section 230 of the 1996 Communications Decency Act.  To effect that control, the President in July 2020 issued an Executive Order intended to override the CDA 230’s core provisions that offer immunity from civil (but not criminal) liability to social media for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”  The President’s Executive Order followed Twitter’s action in labeling as questionable his tweet saying that mail-in balloting would be “substantially fraudulent.”  Congress passed CDA 230 to protect social media from nuisance lawsuits, the legislation being triggered by a case successfully brought by Stratton Oakmont, Inc. (the subject of the film, ”The Wolf of Wall Street”) against an online network that allowed posts that exposed Stratton’s illegal pump-and-dump schemes.  One purpose of CDA 230 has been to permit social media to adopt rules and to apply them “in good faith” to allow or disallow content.  Prior to 1987, media partisanship was proscribed by Federal regulation under the Fairness Doctrine.  Its repeal explicitly freed media – all media – to act “unfairly” on a “good faith” partisan basis.

The action of Twitter in suspending President Trump was followed by Facebook, Apple and Google.  In addition, Amazon and Apple withdrew their web-hosting of Parler, a far-right Twitter rival, citing a similar failure to control violence-inciting content.  John Matze, the chief executive of Parler, retorted on Fox News:  “I never thought we’d be living in a country … where you could get coordinated companies cancelling what you’re doing.”  Last week, Parler filed a lawsuit against Amazon alleging that it violated antitrust law because its decision was “motivated by political animus” and was designed to reduce competition to the benefit of Twitter, another Amazon customer.  Political animus is not subject to legal protection in America (in contrast to race, religion, ethnicity, sexual orientation and national origin) … and businesses’ role in America’s capitalist economy is to maximize profitability by favoring more lucrative contracts and clients over less-lucrative ones.  Much like Ms. Merkel and her fellow-European critics of America’s Constitutional system, Mr. Matze misses the point of American freedom of speech.  He does, however, most certainly understand America’s judicial system.

The goal of media companies – including social media companies – is, after all, to attract eyeballs and generate profits.  Hence the oft-repeated media slogan, “If it bleeds, it leads,” a saying that has its roots in the 19th Century Yellow Journalism of Joseph Pulitzer and William Randolph Hearst.  Pulitzer used his newspaper empire to spread misinformation that attracted readers – the “fake news” of his day.  He published sensational stories that focused on crime, disaster and scandal, which the Hearst newspaper empire emulated.  Among other things, historians believe that their disinformation competition ignited America’s war against Spain in 1898.  Their style of sensationalism, fear-mongering, misinformation, and exaggeration came to define Yellow Journalism …, and those tactics are now being repeated by a number of today’s print, television and social media.  Although there is justifiable fear that the re-emergence of Yellow Journalism might lead to similar strife, the hope is that recent events will provoke a rejection of misinformation and fear-mongering and a resurgence of the free exchange of ideas that underlie America’s Constitutional democracy.

Finally (from a good friend)

New Intelligence Exam.  You need only 4 correct out of 10 questions to pass:

1) How long did the Hundred Years’ War last?
2) Which country makes Panama hats?
3) From which animal do we get cat gut?
4) In which month do Russians celebrate the October Revolution?
5) What is a camel’s hair brush made of?
6) The Canary Islands in the Atlantic Ocean are named after what animal?
7) What was King George VI’s first name?
8) What color is a purple finch?
9) Where are Chinese gooseberries from?
10) What is the color of the black box in a commercial airplane?

Remember, you need only 4 correct answers to pass …


1) How long did the Hundred Years War last  116 years
2) Which country makes Panama hats?  Ecuador
3) From which animal do we get cat gut?  Sheep and Horses
4) In which month do Russians celebrate the October Revolution?  November
5) What is a camel’s hair brush made of?  Squirrel fur
6) The Canary Islands in the Atlantic Ocean are named after what animal?  Dogs
7) What was King George VI’s first name?  Albert
8) What color is a purple finch?  Crimson
9) Where are Chinese gooseberries from?  New Zealand
10) What is the color of the black box in a commercial airplane?  Orange (of course)

What do you mean, you failed?

No Comments

Post A Comment