On Sunday and Monday, Apple, Facebook, Google, Spotify and even Pinterest made moves against conspiracy theorist Alex Jones’ content hosted on their platforms. Apple removed five of Jones’ six podcasts, Facebook banned four of Jones’ pages, YouTube (owned by Google) deleted Jones’ channel, Spotify removed one of his podcasts and Pinterest banned his account. Jones and his supporters, somewhat predictably, were outraged.
What they seemed to have missed in their temper tantrum, ironically, was that the very principle of free speech they cited in their defense, the First Amendment, actually defends the arguments and actions of Apple et al. What Jones and his supporters fail to grasp (besides reality), is that the First Amendment offers no protections to hosted content.
This isn’t the first time this argument has cropped up either. Conservatives all over the internet allege they’ve been unfairly censored by tech firms. However, this isn’t a column discussing whether or not they’ve been unfairly censored or whether or not they deserve it, because, frankly, I don’t really care and, frankly, their arguments for this are BS.
No, what this column is discussing is the disingenuous misrepresentation of the First Amendment put forward by these largely conservative talking heads. They love to preach the Constitution, freedom and American values, yet in the same hand they fail to properly understand the very principles they preach. And with regard to the First Amendment, this isn’t a simple disagreement over interpretation. They fail to grasp or are intentionally misleading (a problem in and of itself) in their arguments of what the First Amendment is and how it applies to internet content.
It’s also worth noting that this isn’t some small, unimportant internet squabble – a Congressional hearing was held on this very topic.
The First Amendment is quite possibly the most important amendment to the Constitution. It allows for the freedom of religion, the freedom of speech, the freedom of the press, the freedom of assembly and the freedom to petition. The First Amendment is quite literally the bedrock of our society.
Conservatives also love to cite it as a reason why the removal or filtering of their content online amounts to a constitutional violation by tech firms. This stance should be rightly judged as free speech absolutism – the idea that all speech, regardless of content, should be protected. But protected from what exactly? In their minds, everything – government or otherwise. However, this stance is not supported by either the written language of the amendment or how it works in practice.
First things first – the wording. The 1st amendment quite explicitly states that “Congress shall make no law ... abridging the freedom of speech.” The important phrase here? “Congress shall make no law.” Why is this important? Well, it doesn’t state that companies shall make no policy or that citizens may not block someone’s freedom of speech. In fact, the only entity mentioned in the entire First amendment as being prohibited from doing something is the government. According to the First amendment, you – a citizen – are protected from government encroachment on your free speech. Facebook and other tech companies are not included as they, quite obviously, aren’t a part of the government. So yeah, if the government was deleting or filtering conservative content online these conservative free speech absolutists may have a legitimate bone to pick. But they aren’t, so they don’t.
Even in practice, this conservative argument falls apart. For this, it is important to understand a concept known as “corporate personhood.” Corporate personhood, in the simplest possible terms can be defined by the idea that since corporations are founded and made up by people, they should be afforded many of the same rights granted to citizens under the constitution.
The Supreme Court in Santa Clara County v. Southern Pacific Railroad Company laid the groundwork for this idea by “[implying] that equal protection laws provided by the Fourteenth Amendment [apply] to corporations.” Further court cases cemented this opinion and further constitutional protections were allotted to corporations. In 1978, this list was expanded in First National Bank of Boston v. Bellotti that opened up more explicit political speech by corporations, namely spending money to influence some elections. Spending money on political campaigns, after all, is a form of free speech. Citizens United v. Federal Election Commission merely built on this trend by allowing spending by corporations in candidate elections (as opposed to all other types of elections as was decided in the First National Bank of Boston case).
What does all this garbled legalese mean? Basically, corporations, under U.S. law, have freedom of speech much in the same way that a normal citizen does. Because of this, the government has little ability to force a corporation into expressing speech. This idea, also known as compelled speech, has a very extensive legal history that amounts to a simple idea: the government cannot force a person (or a corporation, as established earlier) into expressing speech (unless the government’s argument can pass the Central Hudson test).
As such, tech companies can very easily (and legally) control what speech is expressed on their platforms, regardless of the First Amendment protections of the individual content creator. After all, one citizen can’t force another to say (or not say) anything they don’t want to.
Even outside of direct interpretations of the First Amendment, U.S. legal code supports the right of tech companies to moderate the content on their respective platforms. 47 USC § 230(c)(2), as Catherine Padhi of Lawfare explains, “protects Facebook from civil liability on the basis of any ‘good faith’ restrictions the company places on access to ‘material that [it] or [the] user considers to be ... objectionable, whether or not such material is constitutionally protected.’ ... The text explicitly says that the decision about whether material is objectionable is the service provider’s to make.”
Basically, if Facebook or any other internet hosting service don’t like your comment or video or any other content – for whatever reason – they are legally allowed to remove it from their service.
Despite these facts, many conservatives still falsely make the case that their supposed censorship amounts to a First Amendment violation. Their argument is patently false and borders on an outright lie. Of course, that assumes they even knew what they were talking about in the first place.
Last fall, the conservative “education” website PragerU sued Google over supposed censorship of some of its videos on YouTube. PragerU alleged in their lawsuit that “[Google] hold[s] YouTube out to the public as a forum intended to defend and protect free speech where members of the general public may speak, express, and exchange their ideas” and, as such, could be sued on 1st amendment grounds for age restricting some of their videos. The judge, predictably, shot down their lawsuit on the grounds that PragerU “failed to show that YouTube infringed its free speech rights by placing age restrictions on its content” given that “[the] [d]efendants are private entities who created their own video-sharing social media website and make decisions about whether and how to regulate content that has been uploaded on that website.”
For a group that claims to know a lot about the First Amendment, PragerU could use a good refresher and a reminder that, in court of law, “Facts Don't Care About Your Feelings.”
Many conservative content creators, it seems, can’t quite wrap their heads around the concept that the First Amendment and free speech are far more complex than they’re willing to understand or admit. They must have missed the memo that conservative content creators and tech companies alike are bound to these limited but inalienable rights and share equal protection in them under the law. Maybe, just maybe, they if stopped their self-righteous whining for a second they’d actually learn a thing or two about the rights all Americans hold dear.