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Yesterday was one of the most important days in the modern history of free speech and the First Amendment.
A few inchoate thoughts for the curious. 1/
A few inchoate thoughts for the curious. 1/
Most important, the First Amendment itself. It prevents the government from compelling or restricting speech of private individuals. It imposes no obligation on private entities to host or restrict speech of others. Indeed, such an obligation runs afoul of the First Amendment. 2/
That is, a law that compels Twitter, the New York Times, an employer, a school, or someone sitting on their front porch to carry someone else's speech raises First Amendment issues. 3/
And, on the other hand, the First Amendment means that Rachel Maddow and Sean Hannity can go on their respective networks and spew their own vitriolic lies; NYTimes and WSJ can fight over revisionist histories; and Twitter and Parler users can debate conspiracy theories. 4/
Wait. What?
Yes, that's right. With limited exceptions, wrong, ignorant, bad, problematic, even hateful speech is protected by the First Amendment.
You might say "that can't be right!" Or even "that's not right, Professor!" Well, it is. 5/
Yes, that's right. With limited exceptions, wrong, ignorant, bad, problematic, even hateful speech is protected by the First Amendment.
You might say "that can't be right!" Or even "that's not right, Professor!" Well, it is. 5/
The key is to understand what the First Amendment protects against. It doesn't protect "speech." It protects against the government deciding which speech is allowed and which speech is not. 6/
It means that when someone says something wrong online, on in the NYTimes, or on Fox, it's not up to the government to correct them -- indeed, the government is prohibited from disallowing such speech. Rather, it's up to other citizens to use their own speech to correct them. 7/
This is as true for Twitter as it is for newspapers, television, employers, churches, civic groups, and folks sitting on their front porch.
And for those who are going to say "aha! Section 230!" ... no. Section 230 doesn't change the First Amendment for platforms. 8/
And for those who are going to say "aha! Section 230!" ... no. Section 230 doesn't change the First Amendment for platforms. 8/
We could get rid of Section 230 and none of this would be any different. 9/
Indeed, to enter the twilight zone, the main reason that people misunderstand Section 230 is because opportunistic demagogues like @HawleyMO and @tedcruz have spent years lying about Section 230 to foment fear and doubt. 10/
But that's OK. Because the First Amendment says that they get to lie to you! The First Amendment says that politicians can lie to you about Section 230 and the First Amendment. 11/
When that happens, the response is for us as citizens to reject them as politicians. The response is to vote them out of office, for their peers to censure and sanction them, for those who know better to explain. 12/
If you don't believe me on any of this ... well, that's fine, I guess. You're wrong. But you're not wrong to say "that doesn't sound right to me. I'm skeptical. I want to know more. I want to understand more. I want to make up my own mind." 13/
Go for it. I recommend @Klonick @evelyndouek @jkosseff @daniellecitron @ma_franks @daphnehk as a starting point. 14/
None of this is to say that platforms' decisions to deplatform their users aren't alarming, important, or deserving of scrutiny. Lots of people have been thinking hard about these issues for years, and they will continue to do so. 15/
Again, part of the First Amendment is that it allows us to criticize and discuss these decisions. And it allows users to stop using these platforms, or to use other platforms, or to develop their own platforms. 16/
Indeed, this is another reason not to regulate these platforms' speech. A few years ago Europe put in place even tougher regulations on platforms than they already had. The result? The existing platforms got stronger and it became harder for startups to get into the market. 17/
In conclusion:
- These are important and hard issues.
- The First Amendment protects private speech from government regulation.
- The First Amendment doesn't just not prevent platforms from restricting speech; it allows it.
- This all actually increases freedom of speech. /end
- These are important and hard issues.
- The First Amendment protects private speech from government regulation.
- The First Amendment doesn't just not prevent platforms from restricting speech; it allows it.
- This all actually increases freedom of speech. /end
