Over and over, we hear that tech companies such as Facebook, Google and Twitter, can limit what is said on their social media platforms because they are private businesses. It is not a violation of the constitutional right of free speech, they say.
Without doing legal research, I assume that somewhere along the way our federal courts – maybe the Supreme Court – has made that judgment. But is it right? It would not be the first time that the high courts have made bad decisions regarding constitutional protections. Think Dred Scott.
We all should know that none of the inalienable rights articulated in the Constitution are absolute. We do not have a legal right to slander another person or to incite a riot – or to cry “fire” in a crowded theater, as Justice Oliver Wendell Holmes put it.
Those restrictions are not censorship. We are not absolutely or physically barred for slandering, inciting a riot or crying “fire” in a crowded theater. It is just that we will suffer the after-the-fact consequences. After-the-fact is the key element. That is a far different approach than PRE-EMPTIVE censorship as the tech companies have commenced doing.
They are also not restricting speech within the limits of the law, but censoring speech with which they do not agree – and speech they determine MIGHT be said. We do not indict a person because they MIGHT slander someone. The constitutional protection is against the act – not some arbitrary belief that such an act … statement … might occur.
The pre-emptive ban by social media is dangerous because it is the slippery slope to censoring free speech over political or philosophical disagreement. It should be the courts to determine when a person has legally abused the right of free speech – not tech companies.
Think of it this way. Tomorrow, I could go out on a street corner and try to incite a riot. I would be arrested and prosecuted – and a court-of-law would finally determine if I had tried to incite a riot or not. But, I would not have police at my door preventing me from going outside in their belief that I would incite a riot.
In our politically correct world, we seemed to have evolved to a point where even offensive speech in the opinion of one person is grounds to take away a wide range of speech rights – especially offensive, insulting or vulgar speech. If we are not free to be rude and crude, we do not have free speech … period.
But what about the tech companies’ alleged right to censor my speech because they are private businesses. That is not – and should not be – the constitutional standard. In fact, we do not exempt businesses from constitutional requirements in almost any industry except high tech social platforms.
If a developer has built an apartment building with 100 units, for example, he or she is not allowed to discriminate against potential tenants on the basis of race, gender, sexual preference or even political affiliation. Private clubs may not discriminate even though they are private businesses. If you run a restaurant, you cannot discriminate against Blacks or Muslims in terms of jobs and even access.
The entire brutal reign of the Democratic Party over the former Confederate states for 100 years was overturned because the Supreme Court determined that private businesses cannot keep Black folks from sitting at the counter in a diner.
It would seem that Immunity from lawsuits should prevent tech companies from restricting or censoring any language. The reason these social platforms are exempt from libel for things said by their clientele on their site is so that those engaging in online chat CAN be totally free to say whatever they like — and if they slander or incite violence, then the law deals with them directly.
If these companies take on the role of censors, then they should not have any shield against liability because they are then DIRECTLY RESPONSIBLE for what does and does not appear online. They should be subject to lawsuits for what appears on their sites AND also for what they refuse to allow on their sites.
If they have immunity and allow someone to use their site to provoke violence, that is their decision, and they should be held culpable. If, conversely, they have immunity and were to block my site because they do not like the conservative opinions I render, then I should have the option of suing them – and let the courts decided if their censorship violated my Constitutional right of free speech or not.
What we cannot allow is to have these social platform companies capriciously decide what we are allowed to say and not say – and then insulate them from the consequences of their actions. We cannot have them determining our constitutional rights – and then be immune from accountability under the law.
So, there ‘tis.
free speech should be allowed any where,as long as it does not threaten any one
NOT WITHOUT BEING REGULATED. NEXT WILL IT BE TELEPHONE COMPANIES??
Did you receive a notice in blue saying, “Awairing moderatio”?
100% agree with your commentary
No, they tried that after the French Revolution , the pushback was Napoleon
if we are to stay AMERICA WE MUST HAVE FREE SPEECH.
This is no longer a free country because of this. We are currently experiencing tyrannical rule. Hitler used the same technique to change truth/reality to what he wanted people to believe. When you alter definitions of things on the internet, any person who has not researched a subject prior to the alteration of the definition, a new reality is created. This is already happening to three percenters.
Against the constitution the First now they will go after the second.
Freedom of speech is a right, and like it or not no one should have the right to silence your opinion, They should just say they disagree with you and we can agree to disagree.
No
apparently if you are a liberal globalist company you can ban, censer and allow blm insignia but not a red hat with maga on it or not if you are a christian bakery. free speech is for communist only so they seem to think.
No. Freedom of speech is a constitutional right in this country. If you are in a “business” that it sole survival is based on people coming together virtually to discuss and debate differences of opinion, then censorship should not be allowed. My personal opinion is to shut them all down, as well as journalstic companies and reintroduce the pony express. We would al be better off being uninformed than to be overwhelmed with rhetoric, hatred, and lies. Maybe then most AMERICANS could make intelligent decision based on their own truth.
Are you serious?? ” Awaiting moderation”?
In an democratic society, hi tech and businesses should adhere to the US Constitution, to allow free speech in a manner that is diplomatically expressed on the site. Social media is an information, and entertaining format, it is how to express the viewpoint, ie political ads are political ads, informational,and the social media shoukd be neutral, the viewer should be able to see , read, and allow their individual judgement. Anti semitism is different, it cannot be expressed because it is a medium of hatred, ie the Holocaust.
Never we live in America and we are free and must keep aAmerica free.
No, Free Speech is exactly what it implies. I do not believe a public platform even if a private company has a leg to stand on to censor anyone. If that were the case every citizen would be able to censor any one at any time. Supreme Court may have never ruled on something as serius as this with the technology in to day’s world. Even if there is a previous ruling that ruling may now be totally out dated.
As the Proud Boys say: “Jews will not replace us!” But FB will not let me call my fellow rednecks “white trash.”
That’s unfair!
It’s clear to EVERYONE that the tech companies overstepped their boundaries. Now if only OUR government should put their feet to the fire is another question. Everyone also knows that if the FBI, CIA and DOJ don’t rein in the tech companies there will be cultural war that they will lose in the end because you can’t alienate 1/2 the country and think it’s OK. Every smart lawyer, historian and business person is shaking in their boots right now because they see the backlash coming if DOJ does not make these companies adhere to the rules that were agreed to when these companies were allowed to be exempt from prosecution for bad actors on their platforms. Only two solutions – allow freedom of speech or become subject to lawsuits. If they don’t get their act straight a HUGE revolution will ensue. The seeds are planted. Don’t be stupid and cause another American revolution like you have never seen in our lifetimes.
I totally agree with the above content. I think however we should take this a step further. It is very obvious, if you have even a modicum of awareness, that Google, Facebook, Twitter, CBS, ABC, NBC and leading world newspapers such as the Washington Post, New York Times are all as one pushing the same agenda. Collectively they are censoring, by foul means or fair, 99% foul, any and all opposing commentaries that challenge that preset agenda. For example the very idea that our election process has been compromised is ridiculed, despite the rather obvious evidence that the whole electoral process that is currently in place needs to be Thoroughly and honestly investigated. The many thousands of doctors world wide who are being forcibly silenced in their observations regarding COVID. If their views in any way challenge what we’re being told they lose their license to practice or worse. It is obvious that an established agenda is being forced on an unsuspecting public and the Social media censoring is merely a part of a much larger picture that we as a society must face.
This all sounds too much like that movie Tom Cruise made about being sent into the future or back to the past, to eliminate people who were going to commit crimes. I don’t remember the title, not a big Cruise fan, but I do remember the storyline was based on the future actions of a person, not the actual event. I’m closing down my FB & I’ve deactivated my Twitter account because there are alternatives out there that won’t treat me as if I’m brain damaged & too stupid to come in out of the rain!
The only way these arrogant bozos will get the message is “Lose Lots of $$$$” -maybe even go Bankrupt-otherwise we’re just a loud nuisance they can/will ignore!
Generally I am an optimistic person overall, but I am realizing, more every day, that dark days are ahead! Not just with social media, but with the government as well. It started already, taking our freedoms away, one after the other. It is so sad ?, my Country is changing!!!
Absolutely ? NO
1946 Marsh vs Alabama A business has an interest in their customers, but does not have complete control over her. (woman walking and distributing flyers on a private sidewalk in front of a business)
There are newspapers and tabloids where the ultra right can express their views. It does not have to be on the net. I believe that hi tech sites do not have to offer their platform to those who propose to overthrow the United States government nor to those who actually or tacitly participate would storm the Capitol building and that would include Trump. There will be a smooth transition of power next week and it must be allowed to happen. It was allowed to happen when The Donald took office and it must be allowed when President-elect Biden takes office, otherwise, the overwhelming majority of Americans are entitled to see that justice prevails and that those who attack us are punished to the full extent of the laws. They also must be never allowed to earn a living in this country. Let them taste the bitter fruits of that which they propose for everyone else. These insects will go home (in a trailer park) with their wife beater undershirt, and kick their dog. Everything in their world will be right again. The police officer’s family will never be right again, but this dirt doesn’t care and is not troubled with these thoughts anyhow.
If they get away with this they will go after the rest of rights. This is what Hitler and all the communist countries did.
wE HAVE THE RIGHT TO OUR FREE SPEECH NO MATTER IF IT IS RIGHT OR WRONG.
OK I replied to this post 2 days ago. Why was it not posted.
I agree with you. I feel like I am in China, Russia or Cuba. I fear for America as I watch a d listen to their plans for us.
“We reserve the right to refuse service to anyone!”
“No shirt, no shoes, no service”
The Supreme Court has held refusal to provide a wedding cake for gays is constitutional.
Doesn’t Facebook have the same right?