Category Archives: Free Speech

Goldsmith is an attorney and former law partner, adjunct law professor, superior court judge, San Diego city attorney, California state legislator and mayor of Poway.

Despite our current deep divisions, one thing Americans should unite behind is the freedom our nation was created to protect. But today some of our precious rights are under assault, and our nation is divided on whether those rights are even worthwhile.

What is most disturbing is the incremental attack on free speech. The onslaught has been seen on college campuses where speakers have been disinvited or drowned out to ostensibly protect us from hearing their views. People have reportedly been harassed and physically attacked for expressing their views. Social media platforms have canceled users, including a former president.

This cancel culture has caused people to lose their jobs or suffer other consequences for saying the wrong thing about public policies.

As a result, there is today a chilling effect on speech as many people are scared to express their views on controversial issues.

Up to this point, much of the censorship has come from abusive tactics in the private sector, not directly from the government.

However, that may change.

According to a Pew Research Center poll conducted July 26-Aug. 8, nearly half of U.S. adults (48 percent) say the government should take steps to restrict false information online even if it means losing free speech.

This is up from 39 percent in 2018.

The same survey found that 65 percent of Democrats and those who lean Democratic and 28 percent of Republicans and those who lean Republican favor such government restriction of false information.

This idea of government censorship is a dangerous trend that could impact our ability to get uncensored news and diverse opinions and could ultimately extend beyond online communications.

Those open to the idea of government censoring so-called false information should consider some basic questions.

For example, what is false information? Is it something that conflicts with government policies or statements? Maybe something purportedly debunked by a favored source? Or is it something just politically incorrect or offensive to a preferred group?

Who would deem information false? Government bureaucrats? Politicians? The loudest mob? Or the Thought Police as in George Orwells novel 1984"?

By restricting communications to what some government authoritarian says is true, how could we challenge government actions, debate issues, argue for reforms, raise new ideas or even reach the truth?

Admittedly, it is often difficult today to decipher truth from fiction. We are bombarded with information through electronic media. To find truth, we need to be skeptical and inquisitive and not simply accepting of what we read or hear.

But having government do this for us is not the answer.

We simply never want government to be in a position to favor or disfavor particular viewpoints, American Civil Liberties Union Executive Director Anthony Romero wrote in 2017. And the fact is, government officials from the local to the national are more apt to suppress the speech of individuals or groups who disagree with government positions.

Where government gets censorship power, the risk is to all rights and our freedom.

Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, President Harry Truman warned, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.

The right of free speech is not about whether we agree with what people say. It is about the right to say it. And if it is taken from one group, eventually we will all lose it.

In fact, the ACLU has historically supported free speech rights of groups it vehemently opposes. Not all speech is morally equivalent, Romero wrote in 2017, but the airing of hateful speech allows people of good will to confront the implications of such speech and reject bigotry, discrimination and hate.

Although the constitutional right of free speech is not absolute, the exceptions are narrow and defined. Government censorship of alleged false information is not one of those exceptions and would lead to demolishing free speech.

If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter, President George Washington said way back in 1783.

Our freedom is not something that we can count on to always be there. We need to protect it, fight for it and always be alert to threats. Freedom is never more than one generation from extinction, President Ronald Reagan was fond of saying.

It is disappointing that half this nation is willing to relinquish our free speech rights without a fight. It is encouraging, however, that the other half will not.

Excerpt from:
Opinion: Freedom of speech is too precious to relinquish - The San Diego Union-Tribune

I'm delighted to report that, six months after the Journal of Free Speech Law was announced (and less than eight months after it was first conceived), the first issue of the Journal is now online (at http://JournalOfFreeSpeechLaw.org), and will be printed in the next few weeks. We have two submitted articles plus a symposium on free speech and social media platforms, for a total of over 500 pages of material.

Our authors include some of the most-cited legal academics, such as Mark Lemley (Stanford) and Jack Balkin (Yale); Nadine Strossen (the former President of the ACLU); and many more. (We also hope to have articles by Kate Klonick and Genevieve Lakier, who participated in our Zoom symposium, in our next issue, likely in a few months.) I'll be blogging the abstract for each of the articles separately, but in the meantime, here's a link to the four-page introduction, Robe and Gown: Why Faculty- and Judge-Edited?

And here is our Table of Contents, with links:

Eugene Volokh, Robe and Gown: Why Faculty- and Judge-Edited? .. 1Jordan Wallace-Wolf, Think Again: The Thought Crime Doctrine and the Limits of Criminal Law .. 5Nadine Strossen, The Interdependence of Racial Justice and Free Speech for Racists .. 51

Symposium: Free Speech and Social Media Platform Regulation

Jack M. Balkin, How to Regulate (and Not Regulate) Social Media .. 71Ashutosh Bhagwat, Do Platforms Have Editorial Rights? .. 97Adam Candeub, Reading Section 230 as Written .. 139Adam Candeub & Eugene Volokh, Interpreting 47 U.S.C. 230(c)(2) .. 175Eric Goldman & Jess Miers, Online Account Terminations/Content Removals and the Benefits of Internet Services Enforcing Their House Rules .. 191Daphne Keller, Amplification and Its Discontents: Why Regulating the Reach of Online Content Is Hard .. 227Kyle Langvardt, Can the First Amendment Scale? .. 273Mark A. Lemley, The Contradictions of Platform Regulation .. 303Alan Z. Rozenshtein, Silicon Valley's Speech: Technology Giants and the Deregulatory First Amendment .. 337Eugene Volokh, Treating Social Media Platforms Like Common Carriers? .. 377Christopher S. Yoo, The First Amendment, Common Carriers, and Public Accommodations: Net Neutrality, Digital Platforms, and Privacy .. 463

Originally posted here:
First Issue of the Journal of Free Speech Law Now Online - Reason

Crossroads Asia|Politics|Central Asia

Japarov signed the bill passed by the parliament last month, but many questions remain about how it will be implemented.

On August 23, Kyrgyz President Sadyr Japarov signed into law a fake news bill approved by the Kyrgyz parliament in late July. The law officially titled On Protection from Inaccurate (False) Information had been sharply criticized by human rights organizations, which said it would threaten free speech in Kyrgyzstan.

Per the Kyrgyz government, the law is meant to regulate the rights and obligations of platforms that host inaccurate information.

It does this via a government watchdog body that would quickly react to complaints about content posted online. The same body would be tasked with identifying anonymous internet users and mandates the creation of a real-name registry for internet users. Internet providers would be responsible for surrendering user information if requested by a court or other government body. Meanwhile, sites hosting content that yields complaints would be obliged to following directions from the watchdog such as a take-down order within 24 hours. As both RFE/RLs reporting and Human Rights Watch noted, the law doesnt stipulate what state body would be responsible.

While the bills sponsors claim it aims to tackle troll armies and the spread of fake news via social media, its critics believe it will be used to target Kyrgyz critical of the government and the president. In addition, those writing about or advocating in regard to domestically controversial social issues, like LGBTQ rights or womens rights, would likely be the target of complaints. Its unclear who will get to decide between valid and invalid complaints.

Such a bill has been in the works for some time. Human Rights Watch cited a July 2020 predecessor vetoed by former President Sooronbay Jeenbekov and sent back to parliament for revision. Another draft was rejected in late June 2021 only to be approved in July (despite the apparent lack of a legal regulation supporting a re-vote and suspiciously after Japarov hosted a tea party for MPs at the presidential residence.)

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The sitting Kyrgyz parliament is past its mandate, anyway, opening its present lawmaking to future questions of legitimacy. Under what authority is Kyrgyzstans parliament even working?

The results of Kyrgyzstans October 2020 parliamentary elections were so marred by fraud that they triggered immediate protests, which quickly spun out of control and took down the government. Not only were the election results nullified, but within a fortnight Jeenbekov was pressured to resign the presidency by Japarov, who had been released from prison during the protests the day after the October 4 election.

Get briefed on the story of the week, and developing stories to watch across the Asia-Pacific.

Instead of rescheduling the parliamentary elections that had triggered the unrest, Japarov pushed for presidential elections in conjunction with a constitutional referendum to dump the parliamentary system Kyrgyzstan had been operating under for a decade. Japarov succeeded. Not only did he win election on January 10, but his preferred constitution was approved in April.

Under the new constitution, the Kyrgyz parliament will have fewer faces (dropping from 120 members to 90) and less influence. But that new parliament isnt even in place; there have not been new parliamentary elections. At present, it looks like Kyrgyzstan will hold parliamentary elections in November (earlier, October 31 was floated as a date).

Read the original:
Will Kyrgyzstan's 'False Information' Law Threaten Free Speech? - The Diplomat

Main quad on the UConn campus.(Public Domain/Wikimedia)

Friends of liberty are few. But not as few as we might think.

In July, free-speech advocates at the University of Connecticut took on a student body hellbent on destroying free speech on campus. A group of students pushed the universitys student government to adopt the UConn Statement, a petition for the university to uphold civil discourse on campus. According to the statement, UConn has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.

Such attempts at restriction came swiftly and viciously. The simple move to promote the First Amendment on campus was met with stunning bigotry and intolerance from UConns student body, and with it a barrage of hateful and violent threats. Students hurled accusations of white supremacy at UConns student body president, an immigrant from Honduras. One of UConns First Amendment advocates was harassed with racial slurs and even received a video of an ISIS beheading.

These students stared down an entire campus culture that had turned against them for their devotion to free speech. Though public sentiment remained negative and combative, people began voicing private support for UConns free-speech warriors. Both faculty and students expressed agreement with the UConn Statement, and the First Amendment coalition on campus is moving forward with speaker events and increased activism. Free-speech debacles such as UConns illustrate valuable lessons that advocates of conservatism would do well to bear in mind.

In my discussions with UConn students, both conservatives and those on the Left, I heard one description of the current political climate that piqued my interest. Liberals give in to radicals too easily, and conservatives have some racism problems.

Innumerable members of the political Right cheer on the former characterization the latter is met with defensiveness, skepticism, and a hearty chorus of but look at the Left. This is why conservatives lose on the culture side. We know that the stereotype isnt true. But the culture doesnt, and we wont fix it by yelling. Segments of the modern American Right have embraced a reactionary response to conservatisms unwarrantedly negative cultural portrayal. But this tactic is not going to win over political moderates.

Visceral reactions are perfectly understandable in response to the far Lefts blatant lies about conservatives. But we must change that tactic to persuade the persuadable. Moderates with deeply held biases against conservatism wont be won over by our most extreme and caustic voices and arguments. If we are to make cultural headway, our strategy must be responsive, not reactionary. College students who advocate free speech are willing to do so with their ideological opponents, working with members of the opposite political party at institutions like UConn to advance the First Amendment. So should the movement more generally.

The battle for free speech is not limited to those on the political right. UConns free-speech warriors are not all conservatives. The First Amendment coalition on college campuses includes everyone from pro-Trump Republicans to classical liberals to libertarians to devoted Democrats. The idea that only the political Right is devoted to free speech is simply not true. The UConn situation is a perfect example of how the First Amendment has a unifying power beyond mere party.

We cant hammer the moderate Left and expect to win in the current moment. These are people with legitimate beliefs in things such as free speech and American greatness. Why dont they just join the Right? Cultural stereotypes, discussed above, play a large role.

This fight hasnt broken down strictly along lines of Right and Left. The relevant categories are, instead, advocates and enemies of liberty. Lord Acton noted that at all times sincere friends of freedom have been rare. But they are not as rare as it may seem. If we can step off the reactionary pedal and unite against the enemies of liberty, we can create the kind of coalition that all authoritarians fear a diverse, intellectually impenetrable, cultural powerhouse dedicated to the advance of liberty. The current moment is not about ignoring what divides us. Its about accentuating what unites us and never apologizing for that strategy.

Given conservatisms negative cultural portrayal and the necessity to join forces against freedoms enemies, we conservatives have to make it clear that our doors are open. We have to expressly say that were willing to work with the politically moderate. The moderate Left is being eaten alive by the Democratic Party. Democratic legislators who stand up to the partys radical gatekeepers are rapidly being beaten down. This gap between the radical Left and their moderate colleagues is our opportunity. We have to take it. Unapologetically.

UConns free-speech advocates realized that. Their no-nonsense approach gives First Amendment supporters a clear line of attack against the enemies of liberty who seek to suppress them. We can learn from that. We can overcome negative cultural stereotypes by being unafraid to work alongside other political moderates against the current radical moment. We can be responsive, not reactionary. And we can look the enemies of liberty in the eye and never apologize for what were about to do.

Thats how we can fight back: With many allies by our side.

Continue reading here:
What We Can Learn from the Campus Free-Speech War - National Review

Claudio Rojas, a 55-year-old handyman who was deported from the U.S. in 2019, poses for a photo in his home in Moreno, Argentina, on May 8. His wife, two sons and two grandsons remained in Florida. Natacha Pisarenko/AP hide caption

Claudio Rojas, a 55-year-old handyman who was deported from the U.S. in 2019, poses for a photo in his home in Moreno, Argentina, on May 8. His wife, two sons and two grandsons remained in Florida.

Activist Claudio Rojas says he was deported to his homeland, Argentina, for appearing in a film that criticized U.S. immigration authorities.

Rojas is one of the stars of The Infiltrators. He was invited to introduce the movie at the Miami Film Festival in 2019. Instead, Rojas was detained at a routine check-in with Immigration and Customs and Enforcement.

A few weeks later, he was deported.

"They didn't like that the film had come out," Rojas told NPR in Spanish through an interpreter. "If I would have shown up at the Miami Film Festival, I was going to talk a lot. And they wanted to avoid that. So they silenced me."

Immigrant rights advocates have argued for years that ICE is deliberately retaliating against them, despite the agency's denials. Lawyers for Rojas say his case is especially egregious and raises big questions about immigrants' freedom of speech.

A federal appeals court heard arguments in his case last year and is now poised to issue a ruling that could have lasting implications.

"You don't want a situation where people believe that if you speak out, the government is coming after you. But that's what happened to Claudio," says Alina Das, a professor at New York University School of Law who is representing Rojas in his appeal.

ICE denies retaliating against Claudio Rojas, or anyone else. The agency says it is simply enforcing immigration law for people who are living in the country illegally including Rojas. He overstayed a visa more than 20 years ago and raised a family in Florida before he was detained by ICE in 2010.

Rojas appears as himself in The Infiltrators. The film, which is part documentary and part drama, centers on Rojas and a group of young activists who deliberately sneak into the immigrant detention center where he was held to help get others out.

At the end of the film, Rojas is released from ICE detention and goes back to living with his family in South Florida. That's how it went for Rojas in real life for the next seven years. He has no criminal record, his lawyers say, and was attending regular check-ins with ICE while pursuing a visa to stay in the U.S. legally.

That is, until the movie premiered in early 2019.

"The only thing that changed right before they decided to take him in was that a documentary film featured his activism, his advocacy for immigrant rights," Das says in an interview with NPR. "That kind of timing is clear proof of First Amendment retaliation."

But that may not be enough for Rojas to win in court.

It's widely agreed that the First Amendment applies to everyone in the country, whether they're a citizen or not. In practice, though, courts tend to give immigration authorities a lot of discretion about whom they deport, says Michael Kagan, who teaches immigration law at the University of Nevada, Las Vegas.

"You have millions of people inside the United States, a country that prides itself on free speech. Yet the government wields a sword over their head with possibly no restraint," Kagan says.

Kagan says there's one Supreme Court ruling in particular that gives ICE a lot of power: a case known as Reno v. American-Arab Anti-Discrimination Committee, or just AADC.

"That case said that basically, the discretion of the government to decide who to deport can't be challenged," Kagan says. "That's really bad news for immigrants."

That decision came up a lot when a three-judge panel from the 11th Circuit Court of Appeals heard arguments in the Claudio Rojas case last September.

The lawyer for the Justice Department, Thomas Benton York, argued that ICE followed all the rules when it deported Rojas and therefore, there's nothing he can do to challenge his deportation in federal court.

"This is a situation where the government did have discretion," York said during the hearing. "It's not disputed that there's a final order of removal."

But the Supreme Court's ruling in the AADC case left the door open for a future deportation case that is so "outrageous," as Justice Antonin Scalia wrote, that it would cross the line.

And appeals court Judge Robin Rosenbaum asked during the hearing whether the Rojas case fits that description.

"There's possibly an outrageous First Amendment scenario where it could be a problem," Rosenbaum said. "It seems to me the situation couldn't be much more outrageous than what we have here."

While Rojas' lawyer was arguing his case, he was in Argentina. thousands of miles away from his family including a grandchild he's never met in person.

"They've taken drastic steps against us, separating us from our family. And there's a big price that we're paying ... just for raising our voices, no?" he said.

It's very rare for ICE to bring anyone back to the U.S. after deporting them. But Rojas' lawyers say that's the only way to bring justice to his family.

Anything less, they argue, would only confirm that freedom of speech doesn't apply to everyone.

Go here to see the original:
ICE Deported Activist After His Movie Release. This Raises Issues On Free Speech - NPR

The founding fathers of the United States believed the protection of free speech was of paramount importance. When James Madison penned the Bill of Rights, he placed freedom of speech right at the top, and the First Amendment of the United States Constitution has persisted as one of the hallmark features of American democracy.

Unfortunately, the right to free speech is continuously under attack, and there are continuous debates about the limitations of this right. Its arguable that the world today has never had more opportunities to spread information than ever due to the advent of the internet and social media, but these opportunities are also being squashed by the collusion of Big Tech and governments nearly everywhere.

The information age has reached a critical impasse where more people are gaining access to more information than ever before, but many questions remain unanswered: What information will people be allowed to access in the future? Who will own the worlds data?

Where can people go to peacefully assemble and voice their opinions now that the world has been united through a vast network we call the internet?

One project, ArGoApp, is seeking to cut through the uncertainty and provide tools that will help create an internet free of censorship for all. Their approach is based on combining the decentralization and immutability of blockchain technology with the ease of creating a web page through content builders like WordPress, and by using ArGoApp, users with very little technical knowledge can deploy their webpages and apps with the push of a button, free of censorship.

The current internet can be easily censored due to its centralized nature, and this means that access to websites can be blocked or the websites themselves can be knocked out by blocking or shutting down the servers that host a websites content. Blockchains, on the other hand, are decentralized networks where data is completely shared across thousands of computers around the world. Its nearly impossible to knock out a blockchain.

By using ArGoApp to add website or application data to a blockchain instead of a centralized server, developers and content creators can avoid censorship entirely. Whats more, they can also maintain control and ownership of their content, and the transparent record-keeping performed by blockchain networks guarantees the origin of all data can be certain.

The possibility of a decentralized web is great news for an internet that has grown more centralized through the rise of Google and Amazon hosting services amidst increased government intervention. Its also great news for those tired of the fake news phenomena that have recently taken hold of internet users worldwide.

At the same time, there is no way to remove data from a blockchain, there is no way to change that data, and its nearly impossible to hide the origin of data added to a blockchain network. Its why blockchains are seen as major disruptors for healthcare, food supply, and financeany sector that relies on secure and trustworthy information flows.

A decentralized web prevents the kind of disinformation campaigns that plagued the 2016 United States presidential election since the source of the information can always be traced. According to ArGoApp, Records of facts can be traced through the network to the identity that first asserted those facts. This is a major shift from the paradigm of the centralized web, in which facts can be asserted, spread, and then revoked in order to disseminate misinformation whose source is hard to determine.

From DARPA to dial-up to Facebook, the internet has seen many changes over the last half-century. Its a gigantic network that connects computers all over the world, more people are using it than ever before, and its constantly morphing as more of the world goes online.

The next step in the evolution of the web looks like one where blockchains will be used to guarantee data can be held and distributed safely. Helping bridge a technological gap, ArGoApp is paving the way for users of all technical abilities to participate in this move towards a secure and free internet of the future.

Users can currently deploy projects on ArGoApps testnet for free. Pricing will be announced with a mainnet launch in September.

More:
ArGoApp Promises a Decentralized Future to Revitalize the Web and Freedom of Speech - bitcoinist.com

It's a long stretch from accepting that peaceful protest action should be made illegal to accepting it should be treated as domestic terrorism.But make no mistake thats where were heading.

I guess its a question of perspective.Some people, including various mining companies and most of our governments, do genuinely consider many environmental activists to be indistinguishable from terrorists.It results from a kind of corporate narcissism: the confusion of self-interest with the public interest.

If youre in power, as both major parties and some corporate players are accustomed to being, then its easy to fall into the trap of thinking that what is good for you is good for the country. Conversely, a threat to your interests is not only un-Australian -- its dangerous.

It's this instinct that drives governments to repeatedly try to slide through new laws designed to prevent or deter environmental and other advocates and activists from even speaking out on, let alone engage in non-violent protest against corporate ventures like logging or mining.It is behind the most recent push to make it easier to deregister charities if their members commit even petty offences in the course of protest action.

Original post:
Charged for chalking: free speech dies in the West - Crikey

Jim Jordan has been one of the Republican congresspeople pushing the big lie conspiracy theory that the 2020 election was stolen from Donald Trump. During a recent congressional hearing on voting access, Jordan was confronted by Democratic Representative Joseph Morelle about whether or not Joe Biden won the 2020 race fair and square. Morelle said to Jordan, I also find it curiouser and curiouser that you would use 2020 data on election participation when you wont even acknowledge the outcome of the same election. Jordan quipped back, Ive acknowledged the outcome. Morelle followed up by asking, have you? Did Joe Biden win this election? There was no fraud, youre prepared to say that? Finally, Jordan made the slippery move of saying Biden is the President of the United States without directly answering Morelles question about whether Biden won the election fairly.

Jordan and his right-wing allies have chosen this route whenever confronted about Biden having won the election. They know at this point not to outright say the Democrats stole it from Trump, as that can get them deplatformed and cause them to lose their access to privileged society. These conservatives also know they have to play into the far right narrative about a stolen election in order to reach the good graces of their Trump-supporting voter base and the big man himself. What results is the delegitimizing of our electoral institutions and the tricking of some portion of the American people into thinking maybe Biden didnt actually win. As Morelle pointed out in his exchange with Jordan, the consequences of this playacting can be deadly, as we saw during the Capitol riots on January 6th. Morelle wrapped up by saying Biden is president now because Congress ultimately ignored the demands of Trump, Jordan, and their followers and counted the electoral votes as cast after the dust settled on January 6th.

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2020 Conspiracy David Pakman Donald Trump Election January 6 Jim Jordan Joe Biden Joseph Morelle Republican The David Pakman Show United States

Continued here:
Jim Jordan Confronted: Did Joe Biden Win the Election? - Free Speech TV

This is the first article in our first Journal of Free Speech Law issue; you can read it here, but here's the Abstract:

According to the thought crime doctrine, neither beliefs nor intentions may be subject to criminal punishment. The doctrine is widely endorsed, but puzzling in its scope. Beliefs have a free speech credential: they play a straightforward role in the sincere exchange of ideas. Moreover, they are harmless, in the specific sense that they do not aim at action and so not at lawbreaking. But intentions are otherwise. They do not necessarily further the exchange of ideas and they may aim at wrongful, illegal conduct.

So why should the thought crime doctrine categorically protect them in addition to beliefs? Why not allow the criminalization of at least some intentions, such as those that aim at criminal wrongdoing? The going answers to this question are unsatisfying because they do not identify any moral reason to protect intentions per se.

I argue that there is such a reason based in the importance of thinking. My argument has two premises. The first is that persons have a fundamental moral interest in thinking. The second is that thinking partly consists in believing and intending whatever one takes to be warranted, even if it's not. Hence, persons have a moral interest in their beliefs and intentions, whether they are true and laudable or false and odious. The thought crime doctrine is the sound legal recognition of this interest.

As you'll see from the upcoming posts, we'll have plenty of doctrinal articles, plenty that discuss public policy and litigation strategy, and some that are empirical; but we of course hope to have law-and-philosophy articles such as this, as well as legal history and more. (Note that this article was blind-reviewed by editorial board members, and is the first article we accepted via such blind review.)

Continued here:
Jordan Wallace-Wolf, "Think Again: The Thought Crime Doctrine and the Limits of Criminal Law" - Reason

(Chainarong Prasertthai/Getty Images)

When it comes to social-media platforms, we will win by championing the Constitution not by abandoning its most fundamental protections.

Conservatives rightly grow angry at the facts considered by the Supreme Court in Masterpiece Cakeshop vs. Colorado Civil Rights Commission. This case involved a Colorado baker, Jack Phillips, who had refused to custom-design a cake to help celebrate a gay wedding. As a Christian, Phillip objected to advancing a message that conflicted with his sincerely held religious beliefs. Once he had done so, he was prosecuted under equal-protection laws. Although the Supreme Court dodged the issue in its decision, this was at heart a question of compelled speech Phillips was being forced by law to use his artistic talents against his will.

Today, many conservatives want to compel others to carry their speech by regulating social-media platforms ability to moderate content. Thats wrong and against longstanding conservative principle. Conservatives need to find another solution to their complaint.

The Masterpiece Cakeshop case was less straightforward than it appeared to many. To conservatives, the baker had a right to refuse service to any customer that demanded he contradict his sincerely held belief. To progressives, the baker was guilty of illegal discrimination. Framed that way, progressives were actually on stronger legal ground than were conservatives. The civil-rights laws of the 1960s had established a category of protected classes who had been the subject of past discrimination in an attempt to right those wrongs.

But progressives were passing over another part of the story. The Supreme Court chose not to deal with what was actually the more important and substantive component of Phillipss complaint: that he was being compelled to engage in speech, which Justice Clarence Thomas emphasized in his concurring opinion in the case.

What was actually happening was a clash between the U.S. Constitution as written and a set of laws (or super-statutes) that are treated with enough reverence by many as to be thought of as a second constitution the civil-rights laws. Despite their prominence, however, the civil-rights laws must give way when they conflict with an established constitutional right, particularly one as sacred as the right to free expression. That is what actually happened in this case, and despite the Supreme Courts avoidance of the direct issue, a similar question will come before them eventually.

It should worry Americans that some conservatives took the wrong lesson from this case. Many of them looked at the verdict and felt as if the Courts silence on protected speech amounted to privileging the civil-rights laws above the First Amendment which meant theyd need to use similar means to protect their own speech. In other words, political viewpoint should become a protected class. If social-media firms, especially, were seen to be disproportionately silencing conservative voices compared with their treatment of progressives then that amounted to discrimination. Indeed, the law, then, needed to change to end legal anti-conservative discrimination just as it had ended legal anti-minority discrimination.

This is the wrong approach. It doubles down on the progressive modus operandi that attempts to dilute the Constitution through super-statute laws like the civil-rights laws that legislatures arent willing to repeal or reform. Instead, conservatives should be standing up for the Constitution and its fundamental rights of free speech and free association.

That means not forcing speech on anybody, period. No matter how two-faced and hypocritical a platform is, it shouldnt be compelled to carry speech it disagrees with; that is at the core of our First Amendment protections.

That means that hard work will be needed from conservatives on two fronts. First, they need court cases or well-crafted laws aimed at establishing proper boundaries around civil-rights laws so they arent used to undermine fundamental protections such as free speech, free association, and property rights. Secondly, they need to organize around the newer, distributed models of Web 3.0 that allow them to create social networks without an all-powerful platform owner. They could, for instance, all use Odysee instead of YouTube. (Content creators, take note: Its trivially easy to upload all your YouTube videos to Odysee.)

Its not as if conservatives arent up for the challenge. Take, for example, the Rights success in reshaping the institution of talk radio in opposition to the mainstream media of the day. That feat was arguably a harder lift than this one is today, and was also entirely consistent with conservative principle. Conservatives win when they stay true to principle. Thats as true today as it has ever been.

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Conservatives Should Remember Their Opposition to Compelled Speech - National Review