Last week, Simon & Schuster canceled its lucrative publishing contract with Sen. Josh Hawley (R-MO), citing his ongoing challenge to the election results. Incensed, Hawley issued a feisty statement decrying “the woke mob” and declaring that “this is not just a contract dispute. It’s a direct assault on the First Amendment.”
Hawley was widely and swiftly lambasted for this response — not just for labeling a book publisher a “mob” a day after raising a fist in solidarity with an actual mob about to attack Congress, but also for fundamentally misunderstanding the First Amendment. Simply put, the idea that a government official can compel a private publisher to print his anti-tech manifesto stands the First Amendment on its head.
In this context, Hawley’s error was so stark that few had difficulty spotting it. But President Donald Trump and others have made the same mistake when discussing alleged anti-conservative bias on social media — cries likely to be amplified after Twitter permanently banned Trump’s account. The more subtle version of this misconception casts a long shadow over tech policy. This post discusses the role that the constitutional guarantee of free speech does — and does not — play when regulating private facilitators of speech online.
The state action doctrine
The First Amendment states that “Congress shall make no law . . .abridging the freedom of speech.” The Supreme Court has extended that restriction to state governments through the 14th Amendment. But in both cases, the focus is on government restrictions on speech; with rare exceptions, the constitution places no analogous duties on private entities. This restriction is known as the “state action” doctrine.
In the offline world, we usually intuitively understand this
conception of our free speech rights. Just because I write a letter to the
editor, it doesn’t mean The New York Times has to print it. And when Simon
& Schuster decides not to publish Hawley’s book, it might have committed
breach of contract, but it does not trample on Hawley’s First Amendment rights.
But we sometimes get this issue muddled, because of how deeply the idea of free speech runs in American society. As Professor Mary Anne Franks explains, “people FEEL that they not only have the right to speak, but that this is an affirmative right that must be honored everywhere.” This intuition is more likely to arise in connection with online speech, because of the architecture of cyberspace. More so than in the offline world, when speaking online we rely on the services of private intermediaries (such as network and app providers) to distribute our messages to others. When Twitter fact-checks a tweet, or YouTube removes a video, the speaker feels that his or her free speech has been violated. But this is a misconception, because the First Amendment doesn’t protect speech. It merely prevents the government from choosing who gets to speak and who does not.
The use and abuse of
the First Amendment in the Section 230 debate
This misplaced feeling that a constitutional right has been violated undergirds the neo-populist movement on the right to reform Section 230. Hawley’s battle cry has been that “if you get censored, you should be able to sue” to vindicate your rights — despite the fact that courts have repeatedly affirmed that private platforms cannot violate the First Amendment. Similarly, when advocating for 230 reform, Trump accused Twitter of “stifling free speech” — a claim he repeated after Twitter canceled his account on Friday.
Moreover, the idea that Twitter must publish Trump’s tweets
(or anyone else’s) violates the site’s own First Amendment right of editorial
control. As the Supreme Court stated in Miami Herald v. Tornillo, private
actors have a First Amendment right to determine what speech they will or will
not publish. Read together, this means that (1) Simon & Schuster did not
violate Hawley’s rights and (2) forcing it to publish Hawley’s book against its
will violates Simon & Schuster’s own First Amendment rights. And the same
holds true of Twitter’s decision to ban Trump.
The First Amendment and
net neutrality
Perhaps surprisingly, a different shade of this same debate played out five years ago — and may arise again — in the context of net neutrality. Net neutrality supporters such as former senator Al Franken stated that net neutrality is “the most important First Amendment issue of our time.” This was false, as network providers were not government entities. Moreover, internet service providers argued that prohibitions on blocking violated their right of editorial control — which the DC Circuit sidestepped by noting that the rules only applied to companies that promised to deliver connectivity to all or substantially all internet endpoints (thus making net neutrality more of a “truth in advertising” obligation than a regulatory duty).
Conclusion
I don’t mean to suggest that the decisions to deplatform Trump and other users are not problematic. They raise important questions about platform policy and market power. But if Section 230 reform, net neutrality, and tech policy are going to remain hot-button issues, a proper understanding of the First Amendment is an essential prerequisite to achieving lasting solutions.
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