Below is an updated version of my column in the Hill on Facebook’s decision to uphold former President Donald Trump’s ban. This weekend in particular, Twitter made it a point of adding an unsubstantiated response to an observation made by Donald Trump Jr. after he tweeted, “Biden is not the next FDR [Franklin Delano Roosevelt] He’s the next Jimmy Carter. “Twitter has made it its business to say that many are“ confused ”by the comment as Carter was a great humanitarian and noble award winner. It was an enlightening moment. These companies now act as censors as malicious intermediaries when it comes to comments on the platforms. You see yourself as a party to all postings and that points of view need to be corrected or clarified in order to advance the company’s position.
Here is the column:
After Facebook’s board of directors confirmed the social media giant’s ongoing ban on former President Trump this week, Rep. Ilhan Omar (D-Minn.) Captured the visceral joy of many on the left: she posted a series of laughing emojis.
Welcome to Free Speech, Inc .: The Democratic Inclusion of Free Speech is based on the presumption of corporate censorship (for some).
Of course, the Democrats insist that they do not attack freedom of speech, but only fight “disinformation”. After all, private companies would have every right to control the language – unless, for example, you are a bakery that opposes making a cake for a same-sex wedding or a company that campaigns for political purposes. The current mantra of defending Facebook’s speaking rights seems strikingly inconsistent with longtime democrats and political activists calling for such rights to be curtailed.
When Masterpiece Cakeshop in Colorado refused to bake a cake for a same-sex wedding for religious reasons, Sen. Elizabeth Warren (D-Mass.) Denounced the bakery’s right to freedom of expression: “It was never about a cake – it’s about making sure nobody has a license to discriminate against LGBTQ + Americans.” When the Supreme Court ruled in the Citizens United case that companies have free speech to participate in politics, Warren was appalled. She has long rejected the idea that companies and individuals have constitutional rights: “Companies are not people. People have hearts. They have children. They get jobs. You get sick. They cry. They dance. You live. You love. And they die. “
In particular, Warren believed that one company (Masterpiece Cakeshop) should be able to be forced to speak while another company (Facebook) should be able to prevent others from speaking. When Facebook banned Trump, Warren stated, “I’m glad Donald Trump won’t be on Facebook. It suits me. “Chairman of the House Intelligence Committee Adam Schiff (D-Calif.) Also celebrated, adding, “Facebook must ban it. That is, forever. “
When freedom of speech concerns are raised because of corporate censorship, Democrats often drop references to freedom of speech violations and instead address first amendment violations. Indeed, when Trump rejected the Twitter ban as a “ban on free speech”, numerous media outlets reported: “Fact check: Did Twitter violate President Trump’s first adjustment rights?” Experts such as Wayne State University law professor Jonathan Weinberg agreed that under the First Amendment, a company “can decide who to do business with and who not”.
When asked about the board’s decision and its implications for freedom of expression, board member and Stanford law professor Michael McConnell dismissed those concerns by insisting that the first change would not apply to Facebook and that “would not become a judge in the country opt for “the former president.”
However, the first change is not the full or exclusive embodiment of freedom of speech. It only deals with one of the dangers to freedom of expression posed by government regulations. Many of us consider free speech a human right. Corporate censorship of social media clearly affects freedom of expression, and replacing Big Brother with a Little Brothers cadre actually allows for far better control over freedom of expression.
This is all the more worrying as politicians are openly pressuring companies to raise censorship. In a hearing last year, Senator Richard Blumenthal (D-Conn.) Actually warned Big Tech CEOs that he and his colleagues were careful to ensure that there were no “regressions or cuts” due to “robust content changes.”
Obviously, these politicians would insist that the Masterpiece Cakeshop case is about discrimination while the Facebook controversy is about disinformation. However, some of us have long viewed all of this controversy as free speech. Indeed, a free speech approach avoids hypocrisy on both sides.
As part of a free speech approach, cakeshop owners have the right to refuse to prepare cakes that violate their heartfelt values, including religious, political or social values. For example, a Jewish cakeshop owner should be able to refuse to make a “Mein Kampf” cake for a local skinhead group, a black owner to refuse to make a supremacist-themed white cake or a gay baker to refuse to make one Kuchens rejects anti-LGBT slogans. While these bakers cannot discriminate when selling prepared cakes, cake decorating is a form of expression and the requirement for such preparation is a form of forced language.
Likewise, NFL teams have the right to freedom of expression to prevent players kneeling or other political or social demonstrations during games. Citizen’s United has the right to support political causes – and yes, Facebook has the right to censor speeches on its platform.
Freedom of speech also allows the rest of us to oppose these companies because of their policies. We have the right to refuse to subsidize or support companies that engage in discrimination based on race or content. Therefore, at social media companies, Congress should not grant those companies legal immunity or other protections for engaging in censorship.
These companies were once viewed as neutral platforms for exchanging views – people who are “friends” in the affirmative or who invite the views of others. If Big Tech wants to be treated like a phone company, it has to act like a phone company. We would not tolerate AT&T dropping calls to object to misleading conversations, or cutting off the line for those who mislead others.
As a neutral communication platform, telephone companies receive a special legal and economic status according to our laws. However, sometimes it seems like Facebook wants to be treated like AT&T but behaves like the DNC.
In defending big tech’s right to censor people, Richard Hasen, professor of law at the University of California at Irvine, stated that “Twitter is a private company and has the right to include or exclude people at its discretion.” clearly for the first amendment. This should also apply to others who may or may not want to speak as a company, from bakeries to sports teams.
When the Supreme Court sent the Masterpiece Cakeshop case back for further processing in 2018, he was an angry spokesman for the House Nancy Pelosi (D-Calif.) Declared, “Masterpiece Cakeshop is a commercial bakery open to the public and clearly such services must be made available to the public on an equal footing. No company or organization open to the public should hide its discriminatory practices behind the guise of religious freedom. “However, Pelosi applauded when social media companies banned some members of the public for discrimination on grounds ranging from climate change to vaccines to elections.
The difference, of course, is that Masterpiece Cakeshop was ready to sell cakes to anyone but refused to express views that contradicted the religious beliefs of the owners. Conversely, social media companies like Twitter and Facebook completely ban individuals, including a world leader like Trump, from their “business”. And to go one step further, Facebook has announced that it will even ban the “voice of Donald Trump”.
Big Tech is allowed to be arbitrary and capricious in corporate censorship. However, our leaders should take a principled approach to corporate language that does not depend on which views are silenced. Because Elizabeth Warren was right. It was “never about a cake” or a tweet or “likes”. It was always about freedom of speech.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.