Monthly Archives: January 2021

These efforts to justify Trumps deplatforming by reference to social-media companies internal speech policiesand in particular, Facebooks willingness to have that decision reviewed by an independent, quasi-judicial Oversight Boardsuggest that the project of platform self-regulation is gaining traction. The important question facing internet users in the United States and around the world is whether the platforms self-regulation will be sufficient to protect the important democratic and expressive freedoms that the American free-speech tradition cares about.

There are reasons to be skeptical that self-regulation will be enough. Perhaps the primary reason is the fact that, notwithstanding their presumably sincere commitment to freedom of speech, social-media companies are, in the end, for-profit entities that offer a forum for speech in order to make money. Will they protect expressive freedom even when it conflicts with corporate profits? Conversely, outside the extraordinary circumstances of the Capitol invasion, will they take down genuinely harmful speech that brings readers to their platforms? Past history suggests that the answer to both of these questions will be no. Certainly the oftenad hoc and inconsistent decision making that the platforms demonstrated during the 2020 election campaign is alone concerning.

Given all of this, it is worth considering a third option that has been used in the past, and could once again be used, to protect expressive freedom from private power: laws requiring that the private media companies governing the mass public sphere abide by basic nondiscrimination and, often, due-process obligations. Even when the First Amendment intruded further into the private sphere than it does today, statutory nondiscrimination and due-process requirements were lawmakers primary tools to ensure that the private companies that controlled the telegraph and telephone wires, the radio and television airwaves, and the cable networks did not use their power to discriminate in favor of certain political viewpoints, or otherwise undermine the vitality of public debate. The most famous, and controversial, example of these laws was the Fairness Doctrine, which imposed extensive, if vague, nondiscrimination duties on radio and television broadcasters, and to an extent, cable-television companies, from the 1930s until the late 80s, when Ronald Reagans FCC repealed it. But the Fairness Doctrine is only one example of a much wider array of media nondiscrimination laws, many of which continue to ensure, to this day, that, as one senator put it in 1926, the few men who control the great publicity vehicles of radio and television do not limit the range of ideas and viewpoints that the public can hear.

In this context as well, a significant shift in political attitudes has occurred. For much of the 20th century, conservatives were the ones who railed against the constraints that federal laws like the Fairness Doctrine imposed on private media companies, and liberals and progressives defended these policies against attack. Today, however, many conservatives argue for the need to impose statutory nondiscrimination duties on social-media companies, while many liberals express alarm about the constraints such bills would impose on the freedom of private companies.

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The Atlantic The Great Free-Speech Reversal - The Atlantic

Contrary to what many people believe, freedom of speech only applies to certain situations. Do you know what your First Amendment rights are?

Freedom of speech is one of our most treasured rights as Americans. Its also one of the most easily misunderstood. Recently, social media companies including Twitter and Facebook banned former President Donald Trump from their platforms, while Google, Apple, and Amazon took steps to remove Parler, the social media app favored by many of his supporters. Many citizens wondered if these steps were an infringement of their First Amendment rights. After all, doesnt the First Amendment guarantee our right to express ourselves freely?

Yesand no, says Jared Carter, professor of law at Vermont Law School for answers. Read on for an in-depth look at what the First Amendment really means. Youll also want to make sure you know the truth behind these myths about the U.S. Constitution most Americans believe.

The First Amendment is less than 50 words long, but each one was carefully chosen to serve as the bedrock for the freedoms we hold so dear. It states, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Here are 19 political questions youve been too embarrassed to ask.

When read carefully, it becomes clear that the First Amendment only restricts the government from interfering with our freedom of speech, Carter points out. The government is not allowed to silence your speech, based on, say your viewpoint or your political views, he says. On the other hand, the First Amendment does not apply to private companies like Twitter or Facebook.

To further illuminate how this works, Carter shares this example: Lets say you own a restaurant and an individual repeatedly comes into the establishment and disrupting other diners. You as the restaurant owner can say to that person, youre no longer welcome in this private business.' This is why the First Amendment is not relevant in regards to Twitters ban on the former president, he says, because just like the hypothetical restaurant, Twitter is a private business.

Test your knowledge of the amendments to the Constitution.

Although our First Amendment rights guarantee we can express even the most controversial views without interference from the government, there are limits. These include:

Additionally, our First Amendment rights can also be restricted if we have an established relationship with the government. An example of this would be employees and students at a public school. Teachers arent allowed, for instance, to encourage students to take illegal drugs. Also, if your relationship with the government gives you access to classified information, you can be prohibited from sharing that.

On the other hand, the government does explicitly have the power to do these 14 bizarre things.

Sources:

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First Ammendment Rights What Is the First Ammendment? - Reader's Digest

Photo by Thought Catalog on Unsplash

By Attys.Alexander Manglinong and Philip Lim Nulud

ON January 7, 2021, a day after the reprehensible violence occurred at the U.S. Capitol, Facebook and Twitter locked former President Donald Trumps accounts.

Many people were up in arms and questioned how Facebook and Twitter could do that. People claimed that it was a violation of his freedom of speech. However, it was not.

Facebook and Twitter are private companies that are not required to provide anyone with their services or platform. Secondly, the First Amendment, which provides for the freedom of speech, does not apply.

When you create an account on Facebook, Twitter, or another social media platform, you agree to abide by their respective terms of service. Like it or not, you entered into a contract with Facebook. They will provide you with access to their platform, so long as you abide by their rules. For example, forFacebook, you agree to not use [Facebook] to do or share anything: [t]hat violates the [Terms of Service], [Facebook] Community Standards, and other terms and policies

In Facebooks Community Standards, there is a specific section as it pertains to Violence and Incitement. It states the following:

We aim to prevent potential offline harm that may be related to content on Facebook. While we understand that people commonly express disdain or disagreement by threatening or calling for violence in non-serious ways, we remove language that incites or facilitates serious violence. We remove content, disable accounts, and work with law enforcement when we believe there is a genuine risk of physical harm or direct threats to public safety. We also try to consider the language and context in order to distinguish casual statements from content that constitutes a credible threat to public or personal safety. In determining whether a threat is credible, we may also consider additional information like a persons public visibility and the risks to their physicalsafety. (Emphasis added.)

Thus, if Facebook determines what you posted incites violence, it can remove the content, and/or disable your account. In this situation, President Trumps speech was deemed to have incited the violence at the Capitol. Under Facebooks terms of service, Facebook was entirely within their right to disable his account.

Facebook, Twitter, and othersocial media companies are not publicly funded. They are private for-profit corporations that can act as they deem appropriate. While Facebook and Twitter are platforms for speech, they are under no obligation to provide anyone with access to their platforms.

The Free Speech Clause of the First Amendment states that Congress shall make no law . . . abridging the freedom of speech. This language restricts governmental, as opposed to private, abridgment of speech. In other words, the First Amendment only applies to actions by federal, state, and local governments.

As an exception to this general rule, the First Amendment may

apply to private entities if they are considered state actors. Under the so-called state-action doctrine, private entities can be subject to First Amendment constraints in only a few limited circumstancessuch as when (1) the private entity performs a function traditionally and exclusively reserved to the government; (2) the government compels the private entity to take a particular action; or (3) the government acts jointly with the private entity. With regard to the first category, U.S. Supreme Court has explained that very few functions are both traditionally and exclusively reserved to the government. Such functions include, for example, running elections and operating a company town.

The First Amendment does not apply to Facebook and Twitter because they are private companies and not state actors under the state-action doctrine. They operate separately and apart from government, and they were not compelled by the government to lock former President Trumps accounts. Further, their primary function namely, the operation of anonline social media platform has not been traditionally or exclusively reserved to the government.

The primary function of Facebook, Twitter, and other social media platforms may be viewed more broadly as the operation of a forum for speech. On this point, the government has traditionally and exclusively operated public forums for speech. But as the U.S. Supreme Court explained, a private entity can- not operate a public forum because it is not a state actor. Public forums, by definition, are forums for speech provided by the government. A contrary rule would effectively strip private companies of their ability to regulate their properties whenever they opened them for speech.

In short, Facebook and Twitter were within their contractual and constitutional rights to lock former President Trumps accounts. They, like other social media platforms, are private companies that may censor or suspend user accounts based on the users failure to abide by their terms of service and policies. As private entities, theyare not subject to the same free speech limitations under the First Amendment that generally apply to federal, state, and local governments.

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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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Alexander Manglinong is an attorney at Sanders Roberts LLP in Los Angeles, where he practices business, employment, and general liability litigation. He serves as the secretary on the Board of Governors of the Philippine American Bar Association (PABA).

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Philip Lim Nulud is an attorney at Buchalter in Los Angeles, where he specializes in intellectual property law. Many of his clients are well-known fashion brands, who he represents in IP protection, strategy, enforcement, and licensing matters worldwide. He is currently a director of the National Asian Pacific American Bar Association (NAPABA), the immediate past president of the National Filipino American Lawyers Association (NFALA), and a past president of PABA. He has been named as one of the Most Influential Minority Attorneys in Los Angeles by the Los Angeles Business Journal.

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[OPINION] Does the First Amendment apply to what you post on social media? - Asian Journal News

We should revisit again and again the stirring call during President Joe Bidens inauguration to put the power and meaning of our First Amendment freedoms at center stage in the 21st century.

In past inaugural addresses, the anthems of a generation have been spoken by the incoming president: Think Franklin D. Roosevelts The only thing we have to fear is fear itself, John F. Kennedys Ask not what your country can do for you, but what you can do for your country, and even Abraham Lincolns call to the better angels of our nature. But not this time, with no insult to President Biden.

This years inspiration came from National Youth Poet Laureate Amanda Gorman, reciting no, inhabiting her poem, The Hill We Climb. She later said it was only half-complete on Jan. 6 when the insurrectionist mob invaded the U.S. Capitol and that the terrible moment gave me a second wave of energy to finish the poem.

Gorman said she wanted to speak of challenges the evidence of discord and division of the moment, but also to express her view of what is past and her vision of what is ahead.

Intentional or not, she echoed and celebrated the exhilarating optimism and intentions of the nations founders in 1791 as the First Amendment was ratified to lead off the Bill of Rights.

In using only 45 words to define our core freedoms perhaps sketch is a more apt descriptive the early leaders of this nation set a course to leave to future generations the practice and effect of those rights so basic to a democracy.

In a nation born of social tumult and bloody revolution, there was no reason to expect debate, discussion and dissent would dissolve as this grand experiment in self-governance unfolded. Rather we were left with the self-remedy machine that is the First Amendment.

Perhaps only a poet could reconcile our flawed past with our soaring aspirations, recognizing that from the beginning we have been coarse, conflicted and often contradictory: Our champions of freedom included slaveowners. In working to form a more perfect union, we dissolved into a bloody Civil War, remain divided by racisms great moral chasm and most recently, watched in horror a fumbled attempt at sedition.

And yet, we the people again and again strive to reach consensus from contention, agreement from argument all the while protected by the simply worded precept that declares we may dissent without being disloyal.

Gormans words put rhyme and lyric to the law:

Weve braved the belly of the beast.

Weve learned that quiet isnt always peace, and the norms and notions of what just is isnt always just-ice.

And yet the dawn is ours before we knew it.

Somehow we weathered and witnessed a nation that isnt broken, but simply unfinished.

.. And, yes, we are far from polished, far from pristine, but that doesnt mean we are striving to form a union that is perfect.

We are striving to forge our union with purpose.

To compose a country committed to all cultures, colors, characters and conditions of man.

And so we lift our gazes, not to what stands between us, but what stands before us.

The freedoms of religion, speech, press, assembly and petition define what it means to be an American, and they have provided us with the engines of change to regularly refine, improve and expand that definition.

Again, in Gormans words:

(Its) because being American is more than a pride we inherit.

Its the past we step into and how we repair it.

Weve seen a force that would shatter our nation, rather than share it.

Would destroy our country if it meant delaying democracy.

And this effort very nearly succeeded.

But while democracy can be periodically delayed, it can never be permanently defeated.

Generations of Americans have used their freedoms many times when other rights and benefits have been denied to set their fellow citizens on a fairer, more just path. Gormans words reminded us of the founders belief that the freedoms of the First Amendment can give hope for a better life for us all if we preserve, defend and use them.

So let us leave behind a country better than the one we were left

With every breath from my bronze-pounded chest, we will raise this wounded world into a wondrous one.

For there is always light, if only were brave enough to see it.

If only were brave enough to be it.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

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Amanda Gorman's lyrical promise of the First Amendment - Hopkinsville Kentucky New Era

Well its been a good while since I managed to tick off nearly everyone, so, of course, a second take is called for.

Im referring to my Wednesday column concerning Destiny Adams, a 17-year-old Manchester High School student and a heavily recruited womens basketball star. Shes headed to the University of North Carolina next year to play hoops, but shes also got a bit of an activist streak to her. See, she wanted to wear a Black Lives Matter shirt during warmups before basketball games this year. Coaches punted to athletic director, athletic director punted to administration, administration punted to school board.

And in a 7-0 decision, handed down after Adams explained her reasoning, the board voted no without any discussion or comment, according to a Patch.com article.

My take Wednesday was simple: Adams should wear whatever damn shirt she pleases during warmups. There is no NJSIAA rule on this, according to the article, and its up to the schools themselves as to what constitutes pre-game attire.

My argument was equally simple: This is a First Amendment issue, and not a Black Lives Matter issue.

People did not take kindly to this.

A general breakdown of the three main comments and concerns I received ...

1) She is representing the school and thus shouldnt wear it. Well, sure, if the school decides thats the case after careful deliberation involving everyone. But there was no discussion, just an outright no from the board. Heres the issue: We own the schools. Its a taxpayer operation. Socialist, if you will (you will). As such, we, the people, are in charge of decisions such as these, and the board not even discussing it in an open forum is disgusting.

2) What about an All Lives Matter shirt, Jeff? What about a Blue Lives Matter shirt, Jeff? What about a Right to Bear Arms shirt, Jeff? What about a {fill in the blank} shirt, Jeff? Yeah. Sure. Go ahead. Wear whatever shirt you want. First Amendment issue, all day long. OK, but what about swastika T-shirts? Or Kill {insert whichever president you hate} T-shirts? Or other, clearly hate-filled T-shirts? Well, the United States Supreme Court has weighed in on this, and there are some pretty narrow limits. Non-protected speech includes obscenity, defamation, fraud, incitement, and true threats. Can we make the argument that a swastika shirt would fall under true threats? Probably. And a Kill whoever shirt certainly seems like incitement. Call a lawyer, you want to wear something like that. But a pro-Trump shirt, or a pro-police shirt, or a pro-Black Lives Matter shirt? Protected. Period. I would much rather run the risk of some asshat sporting a swastika than making these blanket bans.

3) And finally, my favorite, and there were a lot of these: If youre such a big First Amendment guy, what about Trump and Twitter and assorted other social media things? Yeah, this is a lay-up: Banning Trump from Twitter has nothing to do with the First Amendment. Twitter is a private company, and can do what they please. Its the same as The Trentonian banning Trump from writing op-eds. Were a private enterprise, we dont have to allow anyone who wants to write something the space to do so.

Now, do I think Twitter should have banned Trump? Well, he certainly deserved a time-out for his tweets that clearly broke the terms and conditions of the site, but banning him outright was probably a bit much. It just feeds into the anti-media idiocy.

OK. So. Have I made myself clear? The First Amendment - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances - is pretty much the bedrock of our democracy. Futz with it, and its a slippery slope.

So yes. Destiny Adams should have been allowed to wear the T-shirt and well would ya look at this: On Tuesday night, at the teams first game, Adams and most of her teammates showed up wearing Black Lives Matter hoodies, according to APP.com. Then they took them off and practiced in their warm up shirts from last year. And during the game, Adams and a bunch of teammates wore wristbands and socks with Black Lives Matter written on them.

Good. For. Her. (And. Them.)

And again, and for the last time, this isnt about Black Lives Matter; this is about the First Amendment. Save your emails.

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Oh, so you really want me to talk about the First Amendment, eh? (JEFF EDELSTEIN COLUMN) - The Trentonian

While fervent followers of President Donald Trump screamed foul and free speech when Twitter, Facebook, and other social media banned the president, they need to realize the First Amendment doesn't apply to private businesses.

Only the government grants free-speech rights through the Constitution. The First Amendment has no more power to grant anyone a Twitter handle than the Second Amendment requires a gun company to sell you a gun.

The First and Second amendments specify instead that, with a few exceptions, anyone can speak their mind and any law-abiding citizen can buy a gun. It guarantees those freedoms so government cannot take away your right to speak. That doesn't include compelling a private company to provide you with speaking "tools" like a Twitter or Facebook account.

The First Amendment does guarantee many variations of free speech. Under the First Amendment, the government, for example, could not prevent you from setting up a soapbox on a street corner and speaking your mind. It could not prevent you from distributing flyers or speaking at a public forum in a public place. The government cannot stop you from marching in a parade and carrying a sign.

The First Amendment even protects symbolic speech like burning a flag or kneeling while the national anthem is played. And the First Amendment has been invoked in recent years to protect "political speech" in the form of campaign contributions. Limits on contributions were ruled unconstitutional under the Citizens United case because the campaign donations constituted "political speech."

But when it comes to private companies like a newspaper or television station or social-media platform, the sovereignty of the stockholders rules. Investors in Twitter cannot be compelled to provide their service to everyone. It simply doesn't work that way.

If you think this is unfair, we can point to people to blame. Some 35 years ago, private broadcasters were required under the federal "fairness doctrine" to provide "equal time" for opposing political viewpoints. But you know what happened? Free-market Republicans like President Ronald Reagan and his cohorts did away with the fairness doctrine, figuring the market would determine who gets political speech and airtime.

So we got what we asked for: smaller government and less fairness.

If President Trump wants to use Twitter for his commentary and communication to his fans, he would be well advised to do something he says he's good at: Make a deal with Twitter. But the First Amendment cannot be invoked here. It doesn't apply.

The Free Press, Mankato, Minnesota

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Other View: First Amendment doesn't apply to Twitter, Facebook - Duluth News Tribune

Forty-five words that were first written with a quill pen 230 years ago form what may be the most consequential sentence in United States history.

But that sentence also is one of the most misunderstood as recent comments from some of our leaders illustrate.

The sentence I refer to is the First Amendment. It is the Constitutions guarantee of fundamental rights of the American people to live their lives without government butting in.

For reference, here is what the amendment says in full: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Some graduates of top law schools must have been snoozing in class when constitutional law was being taught. Sens. Josh Hawley and Ted Cruz are a couple of examples.

Hawley, R-Missouri, is a Yale law school graduate. Cruz, R-Texas, is a Harvard law school graduate. Before they were elected to the United States Senate, Hawley was Missouri attorney general and Cruz was Texas solicitor general.

It would not be surprising if someone without legal training did not fully grasp the nuances of those 45 words in the First Amendment. But it is troubling that Ivy League lawyers could be so wrong about such a fundamental part of life in America or be so willing to deliberately mislead the public.

Conservatives have groused that social media companies like Facebook and Twitter favor content with a clearly liberal bent. Cruz recently tore into corporate executives during a Senate hearing and demanded to know, Who the hell made Facebook the arbiter of political speech?

Hang on: The answer to Cruzs question is coming shortly.

Hawley was the first senator to rise in support of President Donald Trumps push to get Congress to reject the electoral votes from a handful of swing states that Joe Biden carried. After the violence at the Capitol on the day of the electoral vote certification, one of the nations big book publishers decided it no longer wanted to publish a new book Hawley has written.

The senator responded by accusing the publisher Simon & Schuster of a direct assault on the First Amendment by backing out of their deal.

Both Cruz and Hawley displayed a flawed understanding of the relationship of the First Amendment to companies like Simon & Schuster, Twitter or Facebook.

Any shade-tree lawyer should know the First Amendment prevents the government from stopping you from expressing your opinions or from demonstrating peacefully. It does not stop businesses from acting, or reacting, on free speech matters.

Hawley is free to take his manuscript to another publisher. He can decide to publish the book himself. But absent a contract clause prohibiting Simon & Schuster from canceling the deal, the company cannot be compelled to publish Hawleys book or anyone elses book.

People who are kicked off Twitter or Facebook have other options for disseminating their views, ideas and commentary especially when they live in the White House, with a press briefing room down the hall and a flock of journalists waiting there every day.

Just as Hawley cannot force Simon & Schuster to publish his book, I cannot compel the New York Times to publish these columns. Nor can I force the Trump family to put a stack of my political commentaries at the registration desk in each of their hotels.

Likewise, just as National Football League team owners have the legal right to punish players who kneel during the national anthem, Facebook or Twitter have the legal right to suspend or drop a user who violates the companies terms of service.

The First Amendment does not require Twitter and Facebook to give accounts to anyone any more than the Second Amendment requires gun manufacturers to sell you a gun.

The essayist A.J. Liebling put this First Amendment concept succinctly years ago when he wrote, Freedom of the press is limited to those who own one.

One of my friends who is not an essayist offered this not-so-succinct explanation of the intricacies of the First Amendment last week:

The government cannot punish you for waving a Confederate flag or wearing a 6MWE shirt or saluting rioters or yelling, You will not replace us. That would be censorship.

But your employer can fire you, your social media can suspend you, your publisher can drop you, and your neighbors can shun you. That is not censorship. That is your employer, your social media, your publisher, and your neighbors exercising their own rights.

Your right to free speech does not take away others right to react.

A footnote: If you are not familiar with the 6MWE acronym, organizations that study white supremacists say it is used as shorthand to claim that the 6 million Jews killed in the Holocaust werent enough.

That is a despicable position to take. The government cannot punish you for thinking or spreading a despicable message. But your boss can.

We are making critical coverage of the coronavirus available for free. Please consider subscribing so we can continue to bring you the latest news and information on this developing story.

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Let's clear up needless confusion about the First Amendment - Oskaloosa Herald

I am at least as upset as anyone by the atrocities of January 6, and feel the time has come to reexamine the First Amendment. It should be modified to permit freedom of expression and assembly only in a non-threatening manner. Inflammatory speech and writing, whether in the news media or online, must be outlawed. Assembly must be conducted in a peaceful manner, outlawing violence of any type.

There have been threats of further violence surrounding the inauguration, both in DC and at state capitals around the country. Accordingly, military troops have been called up to maintain peace. Should members of the crowd who oppose the inauguration choose to become violent, then in my opinion, the military should be given shoot-to-kill orders if required. Sound too much like Tiananmen Square? So be it. Its time for neo-Nazi, racist, homophobic and other extremist organizations to accept and abide by our laws, or find another country in which to live.

Disclaimer: As submitted to the Arizona Daily Star.

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Letter: Inauguration, and the First Amendment | Letters to the Editor | tucson.com - Arizona Daily Star

Say that a state creates a law that protects speech more than the First Amendment does; for instance, say that the state law protects speakers against retaliation or exclusion by

And say that Congress preempts that state law, for instance allowing the private entities to restrict speech on their property (or by their employees or students).

Could that federal law potentially violate the First Amendment, even though it doesn't actually forbid speech, but simply empowers private entities to do so?

Vivek Ramaswamy's and Jed Rubenfeld's Jan. 11 Wall Street Journal op-ed suggests the answer is yes; and on reflection, I think there is a good argument for a version of that position, though I'm not sure whether I'm persuaded by it myself. I'd therefore like to lay out in this post what I think is the best argument inspired by their claims, though not one that necessarily agrees with them in all details.

[1.] Let us begin with a precedent. (Remember, "law is the only discipline in which 'that's an original idea' is a pejorative.") In 1943, Nebraska enacted a state constitutional provision that provided that employers and unions can't require employees to join unions. In the Railway Labor Act of 1951, Congress preempted such state statutes, allowing (but not requiring) railroad employers and railroad unions to demand union membership as a condition of employment. Employees sued a railroad and a union under the Nebraska state provision for imposing such a "closed shop" contract. The defendants raised the federal Act as a defense, arguing that it preempted the state provision.

The U.S. Supreme Court (Railway Employes v. Hanson (1956)) concluded that the Railway Labor Act's preemption of state law needed to be evaluated under the First Amendment:

The union shop provision of the Railway Labor Act is only permissive. Congress has not compelled nor required carriers and employees to enter into union shop agreements. [But we agree with] the view that justiciable questions under the First and Fifth Amendments were presented since Congress, by the union shop provision of the Railway Labor Act, sought to strike down inconsistent laws in 17 States. [We agree that] "Such action on the part of Congress is a necessary part of every union shop contract entered into on the railroads as far as these 17 States are concerned for without it such contracts could not be enforced therein."

If private rights [presumably rights secured by the Nebraska no-closed-shop provision] are being invaded, it is by force of an agreement made pursuant to federal law which expressly declares that state law is superseded. In other words, the federal statute is the source of the power and authority by which any private rights are lost or sacrificed. The enactment of the federal statute authorizing union shop agreements is the governmental action on which the Constitution operates, though it takes a private agreement to invoke the federal sanction.

The Court concluded that the Act was substantively consistent with the First Amendment, because mere "compulsory membership" in a union does not necessarily "impair freedom of expression," in part because "Congress endeavored to safeguard against that possibility by making explicit that no conditions to membership may be imposed except as respects [the payment of union dues] . If other conditions are in fact imposed, or if the exaction of dues is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case." And in Machinists v. Street (1961), the Court did suggest that the First Amendment would bar spending compulsory union dues collected under the Act "for political causes which [the coerced employee] opposes," though the Court avoided that constitutional problem by reading the statute to prohibit such exactions of dues for political purposes.

Now Will Baude and I (and others) have argued that in fact the First Amendment inquiry here was substantively misplaced, and coercive contributions that are used for political causes are generally not unconstitutional. But this specific detail (on which the Court has disagreed with us) isn't important here. Rather, I think this case sets forth a more general principle:

Questions under the First Amendment are presented when Congress preempts state law that protects speech against private action, because the federal statute is the source of the power and authority by which any private rights are lost or sacrificed.

This does not necessarily mean that the private actor (employer and the union) somehow becomes a "state actor" (or, more precisely, a "government actor") fully bound by the First Amendment. The government action is Congress's preemption of the state law protection. That government action must be judged under the First Amendment. And if the First Amendment blocks that preemption, that simply means that state law springs back into force and continues to restrain the private actors.

The splintered decision in Denver Area Ed. Telecomm. Consortum, Inc. v. FCC (1996) seems to reinforce this principle: A majority of the Justices concluded there that a federal statute that allowed (but didn't require) cable operators to block indecent material, and preempted contrary common-carrier-like rules or local control rules, was subject to First Amendment scrutiny and was indeed partly invalid. (See Part IV of the opinion and Part II of Justice Stevens's concurrence for more details.)

[2.] OK, now let's see how this principle might play out in three hypothetical contexts, before we turn to 230. My own state of California has three state law rules that protect speech against private entities (one of them is based on the state constitution and the other two on state statutes, but that distinction doesn't matter for First Amendment purposes):

Let's say that Congress enacted a Private Shopping Mall Discretion Act, a Private Employer Discretion Act, and a Private Educational Institution Discretion Act, which allowed (but didn't require) all privately owned shopping centers, employers, and educational institutions to exclude whatever speech they liked.

I think that, under Hanson and Denver Area, those statutes could be challenged under the First Amendment. Again, the statutes wouldn't make the mall owners, employers, and educational institutions into state actors bound by the First Amendment. But the Hanson/Denver Area principle would allow visitors, employees, and students to sue under the state laws, and then try to use the First Amendment to invalidate any federal statutory defense that the defendants interpose.

This seems especially apt if the hypothetical Private Discretion Acts were viewpoint-based, e.g., "a private college shall have the power to discipline a student for the student's speech, notwithstanding any contrary state law, if the speech constitutes 'hate speech'"or, if you prefer, "a private college shall have the power to discipline a student for the student's speech, notwithstanding any contrary state law, unless the speech expresses support for federal government policies." Such selective continued protection for some speech, or selective enabling of private suppression of other speech, should at least be subject to substantive First Amendment scrutiny (whether or not you think it might sometimes pass such scrutiny).

But under Hanson and under the logic of Denver Area, I think even a content-neutral statute preempting such speech protections would be subject to First Amendment scrutinyto be sure, the more forgiving intermediate scrutiny applicable to content-neutral speech restrictions.

[3.] Now, if you're with me so far, let's see how this would play out as to 230, and in particular 230(c)(2)(A),

No provider or user of an interactive computer service shall be held liable on account of 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.

Imagine that a state enacts a Social Media Common Carrier Act, which provides something like this:

Just as phone companies are common carriers, which may not deny service based on their users' viewpoints or other attributes, so social media networks may not terminate a user account or delete content supplied by a user based on the ideological viewpoint or factual assertions expressed by that user.

(Assume that the law is somehow largely limited to speech posted and viewed by users within the state, and therefore avoids Commerce Clause problems. Assume also that such an Act wouldn't itself violate the social media network's First Amendment rights, perhaps because a court would conclude that such a mandate is consistent with Pruneyard Shopping Center v. Robins, Turner Broadcasting System v. FCC, and Rumsfeld v. FAIR, all of which upheld some requirements that private entities open up their property to outside speakers. Both are complex questions, but questions for another day. Finally, note that the hypothetical rule isn't quite a traditional common-carrier rule, but there are many different ways to craft such nondiscrimination mandates.)

Users sue Twitter under this state law for banning them based on viewpoints that they have expressed. Twitter says the federal 230(c)(2)(A) preempts the state law. But the users respond that 230(c)(2)(A) is itself a speech restriction that must be evaluated under the First Amendment; adapting Hanson, they argue:

Section 230(c)(2)(A) is only permissive. Congress has not compelled nor required social media networks to restrict user speech.

Nevertheless, justiciable questions under the First Amendment are presented since Congress, by 230(c)(2)(A), sought to strike down inconsistent laws protecting user speech against the social media companies. Such action on the part of Congress is a necessary part of Twitter's editing decisions as far as this state is concerned for without it such banning could not be done within this state.

If private rights secured by the state law are being invaded, it is by force of a Twitter policy made pursuant to federal law which expressly declares that state law is superseded. In other words, the federal statute is the source of the power and authority by which any private rights are lost or sacrificed.

The enactment of the federal statute authorizing social media networks to impose such speech restrictions is the governmental action on which the Constitution operates, though it takes a private decision to invoke the federal sanction.

I think this is at least a credible argument, which a court could use to evaluate 230(c)(2)(A) as a speech restriction that triggers the First Amendment. Perhaps 230(c)(2)(A) passes First Amendment scrutiny, but given Hanson and Denver Area, there's a serious basis for a court to apply such scrutiny.

[4.] Finally, let's turn to perhaps the most ambitious theory, focused on 230(c)(1). Recall that 230(c)(2)(A), which I quoted above, actually has little practical effect right now: It preempts state laws that would limit service provider editing discretion, but so far there are in practice virtually no such laws, and no general common carrier statutes / viewpoint discrimination bans of the sort I hypothesized (though some such bans are being contemplated by some state legislatures).

The important provision of 230 is 230(c)(1), which protects social media networks from libel liability (and other state-law liability) for those user posts that they don't edit out. Section 230(c)(1) is used all the time to block such lawsuits.

But wait: Sections 230(c)(1) and (c)(2) were deliberately designed to preempt a specific rule that emerged out of two trial court cases applying New York state law, Cubby v. Compuserve, Inc. (S.D.N.Y. 1991) and Stratton Oakmont, Inc. v. Prodigy Services Co. (N.Y. trial ct. 1995). That rule, to oversimplify, was:

This rule (to be sure, one that was in its infancy at the time 230(c)(1) preempted it) isn't a categorical protection like the hypothetical Social Media Common Carrier Act. But it is still a form of speech protection against private restriction: It encourages private platforms not to restrict speech, by offering them immunity if they provide unrestricted posting rights, but threatening them with some degree of liability if they restrict user speech. And it's clear that 230 (including (c)(1)) was indeed intended to encourage service providers to feel free to restrict speech; the title of 230, after all, is "Protection for private blocking and screening of offensive material."

If this analysis is right, then the constantly invoked 230(c)(1), and not just the rarely applicable 230(c)(2)(A), itself constitutes Congressional preemption of state law that protects speech against private action. And as a result, the 230(c)(1)/(2)(A) combo, and not just 230(c)(2)(A), would need to be evaluated under the First Amendment. (Recall the principle we gleaned from Hanson and Denver Area: "Questions under the First Amendment are presented when Congress preempts state law that protects speech against private action.")

Again, 230 might be seen as constitutionally permissible, perhaps on the theory that its preemption of this state law protection for private speakers passes muster under the intermediate scrutiny applicable to content-neutral laws. But at least courts would consider the question whether 230, by enabling and indeed promoting private restriction of speech, notwithstanding contrary state law rules aimed at protecting speech, themselves violate the First Amendment.

[5.] As I mentioned at the outset, I'm not sure that this analysis is right. Perhaps Hanson and Denver Area (discussed in item 1) are themselves mistaken in applying First Amendment scrutiny here. Or perhaps other precedents that I've missed pull sufficiently in the opposite direction. Or perhaps somewhere in the path from item 1 to 2 to 3 to 4 the analogies go off the rails. And I stress again that this analysis is not identical to the Ramaswamy & Rubenfeld position, though it is inspired by that position.

But I thought I'd set forth what I thought was the strongest argument in support of that view, and see what others have to say about it. I'd love to hear people's reactions, and to adapt my own thinking in light of them.

Excerpt from:
Might Federal Preemption of Speech-Protective State Laws Violate the First Amendment? - Reason