Not Your Founding Fathers’ 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.

How do we remain true to the ideals of the Constitution’s authors while adjusting to the realities of change and the lingering effects of an imperfect republic? Unfortunately, many Americans remain ignorant of both the original intent of the amendment and its current legal interpretations.

The result is that we’ve fallen prey to countless misconceptions, many intentionally spread by political interest groups, including the following false statements:

All forms of political communication have protection under the amendment.

While the Constitution prohibits Congress from restricting our freedoms, it doesn’t clearly define what those freedoms are. Relying on precedents in law, courts have determined that the founders didn’t intend to include:

  • Obscenity
  • Fighting words
  • Defamation (including libel and slander)
  • Child pornography
  • Perjury
  • Blackmail
  • Incitement to imminent lawless action
  • True threats
  • Solicitations to commit crimes

These exceptions, along with the extension of “Congress” to include all forms of government, have led to countless court decisions.

Social media bans and website delisting violate the First Amendment

In Knight Institute v. Trump, the Knight First Amendment Institute at Columbia Law School sued Donald Trump on behalf of individuals he removed from his Twitter site. According to Knight’s Executive Director, Jameel Jaffer, “This case stands for a principle that is fundamental to our democracy: government officials can’t suppress speech simply because they disagree with its message.”

The Supreme Court rejected this argument and vacated a lower court ruling for the plaintiffs. As explained by David Goldberger, former lawyer for the American Civil Liberties Union, “The question is whether these private platforms are the same as newspapers refusing to run political ads, or whether it’s the same as the government saying you can’t talk.”

After the January 6 insurrection Trump raised similar complaints about social media banning and delisting him, calling them unfair. Washington Post correspondent Will Oremus explained that this is a matter of partisan debate, rather than reasoned Constitutional discussion.  Oremus seems to agree with Goldberger when he states, “Under U.S. law, social media companies have generally been understood to enjoy the same broad leeway as traditional media in deciding whose views to air – and whose they’d rather not.”

Social media have the right to ban hate speech.

As explained above, social media have a constitutional right to ban whomever they choose, not just hate speech. The Trump bans, for the most part, came after repeated violations of rules Trump that agreed to in using those platforms. The question of whether they did so in a capricious manner, as explained by Kara Swisher is a matter of contractual law, not a Constitutional concern.

The sheer size of tech giants obligates them to provide unfettered access to groups who don’t have access to other media

This assertion from Swisher is a matter of her opinion. The unresolved underlying question is whether social media are utility-like tech platforms, with no responsibility for content, or media organizations, with First Amendment protections. Unfortunately, it seems they want to have it both ways. If they’re simply tech platforms, then Swisher’s argument would seem to have merit, but then one might argue that social media must provide access to everyone and make their users responsible for the consequences of their messages, which would contradict Swisher’s earlier arguments.  

Sadly, much of this debate has hinged on political ideology, rather than any understanding of constitutional law. The danger in this is that we may soon reach a point where political fashion and extremist views preempt reasonable judicial interpretation. One group might argue that protected speech includes only what it agrees with or finds inoffensive, at the same time advocating unfettered access to all media for its own purposes.

We must take care that understandable indignation over recent violence and bigotry don’t lead to constitutional changes that undermine our rights. In short, we should be careful what we wish for.