A Primer For CONFUSED Conservatives On The First Amendment And Free Speech On Social Media

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Carl Szabo NetChoice
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Two weeks ago, my op-ed at The Daily Caller titled “SORRY, CONSERVATIVES: You Don’t Have Free Speech On Facebook Or Twitter” ignited fierce discussion about the First Amendment and social media.

The op-ed served to reiterate conservative values allowing businesses to decide what happens on their property. These values likewise allow online services to remove content that violate their policies — Facebook, Twitter, and Drudge Report can all remove content and posts they find objectionable.

Unfortunately, many comments in response to the op-ed were replete with misconceptions, specifically about the workings of the First Amendment and the “public square doctrine.” To create a better discussion on our right to free speech and expression, these misconceptions must be addressed.

The first misconception from many is that the First Amendment applies to regulation of speech by private actors. The First Amendment protects against governmental limitations on expression. Governmental here means limiting government action, not the expression of private individuals or organizations.

For example, the First Amendment protects against a president shuttering The Daily Caller because she does not like an article written about her. The First Amendment prohibits lawmakers from limiting speech, whether liberal or conservative, and whether online or offline.

The First Amendment does not entitle a liberal journalist to demand publication in a conservative magazine. The First Amendment also does not require a cable news television station to feature balanced coverage.

Nor is it a violation of the First Amendment for an online platform to remove content it doesn’t like. Rather, that is the operators of the online platform exercising their First Amendment rights.

This is something conservatives usually recognize, even as recently as the Sinclair fake news bulletin scandal, where the network was accused of pushing out a political message via its locally owned media stations. Conservatives were quick to defend the media company, acknowledging its right to regulate content.

The Daily Caller’s Anders Hagstrom said, “If you don’t like what Sinclair is selling, there are 1,780 TV stations in the U.S. – change the channel.” The same could be said of conservative critics of Facebook who insist on using the platform regardless.

The second misconception used to argue against my prior op-ed is about the “public square doctrine.” This court-created doctrine flows from the First Amendment and maintains that in certain public spaces, such as in parks or on streets and sidewalks, the government cannot regulate free speech.

Facebook is not a “public space” though. Facebook is unquestionably a private business.

As conservative principles dictate, none of us are entitled to do what we want on Facebook any more than we would be in a coffee shop or bar. We wouldn’t require a coffee shop to maintain bulletin board postings it doesn’t like. Why would we expect that behavior of Facebook.

Conservative Supreme Court Justices Rehnquist, Scalia, Thomas, and White ruled in a 6-3 decision in International Society for Krishna Consciousness v. Lee that even government-funded spaces like airports may restrict speech. Conservatives have historically been unpersuaded that the “public square” doctrine should be broadly expanded, especially to private businesses.

This principle should not change just because a current example is found online.

Last week’s federal court ruling on President Donald Trump’s Twitter blocking turned on the fact that the president’s “control” of his Twitter account made it a public forum and thus protected by the First Amendment. So if we want social platforms to be treated as “public forums” then we must be willing to give control to the government — the opposite of conservative values.

For those conservatives fully aware of how the First Amendment works and who still call for government action against Facebook, I just say: Cut it out. The solution for conservatives’ concerns about social media platforms is to vote with your feet and use a different platform. Stick to your principles and forget about the temporary insanity of arguing to expand government regulation.

Conservatives value a strict adherence to principles because of what can happen when a society drifts from its core values. It’s crucial they remember these principles in the age of the internet.

As President Ronald Reagan said, “Government is not the solution to our problem; government is the problem.”

Government regulation of free speech online would not safeguard the future of conservative speech. It would endanger it.

Carl Szabo is general counsel for NetChoice, a trade association of eCommerce businesses and online consumers. Facebook is a member of NetChoice. Szabo is also an adjunct professor of privacy law at the George Mason University Antonin Scalia Law School.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.