The gagging of President Trump by all of the dominant social media seems to have prompted much second thinking about the First Amendment, partly because the Internet has created problems that the nation’s founders and their intellectual forbears could not possibly have taken into consideration. I have always opposed any attempt to blame technology for any modern problem, and I am making no exception now, but this technology does enable some people to abuse their legal rights with public consequences not previously possible, and this is relevant to how we should define those rights.
The First Amendment was a restriction on the power of the federal government, and no more. It says, “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” Just Congress. It says nothing about what anyone else may or may not do, and for most of the first 200 years of the nation’s existence, the Supreme Court agreed that, in particular, it did not apply to the states. After the 14th Amendment was adopted after the Civil War, some people suggested that that amendment somehow implied an extension of First Amendment restrictions to state governments. That suggestion, though, was given no judicial notice until well into the 20th century, and to this day it is understood as a limit on government power, not personal power or corporate power. My employer can restrict my speech all he wants to while I am on company time, and Facebook can cancel my account whenever it wants to for any reason it wants to, because the First Amendment just does not apply to my employer or to Facebook.
We’re always hearing about the free and open exchange of ideas and how necessary that is for a healthy democracy. A problem I keep noticing in these discussions is how eager the participants are to make certain exceptions. Sure, we want free and open exchange of ideas—but not those ideas. Like, surely, we can’t allow free speech to Nazis or racists, can we?
The paradigmatic exception was offered by Justice Oliver Wendell Holmes (in Schenck v. United States, 1919): “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.” As it happens, the idea was misapplied to the case he was ruling on, because the speech in question was in no relevant way analogous to shouting fire in a theater, but that doesn’t mean it was a bad idea. Even John Stuart Mill, the quintessential champion of personal liberty, granted that a commitment to free speech did not justify allowing a speech that was intended to incite a lynching.
The issue is not whether one person’s right to life should prevail over another person’s right to liberty. That argument could be made, but it would be irrelevant. The issue is whether anyone should be free to use their rights to deprive anyone else of their rights. If that were permitted, then no one would have any rights. And thus, if Jones attempts to deprive Smith of any of his rights, then Jones has in effect forfeited his own rights. He cannot reasonably demand for himself the protections against abuse of power that he would deny to others. If you have the power to frighten a crowd of people into a dangerous stampede, or to arouse them into a state of murderous hatred, then you abuse that power if you use it. A free society cannot allow that abuse, no matter what rights it is committed to securing.
Although the “shouting fire” notion was misapplied in the Schenck case, it is still a useful metaphor as clarified by the Supreme Court in Brandenburg v. Ohio in 1969. There, the court said, even hate speech has to be allowed unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” A stampede in a crowded theater is not lawless action as such, but if the law is justified in prohibiting an incitement to any illegal behavior, it surely is justified in prohibiting incitement to behavior that kills people even if it is legal. Or, it can be justified. In Holmes’s hypothetical, the word “falsely” is pretty important. If someone in a theater sees a real fire, we don’t want to punish them for sounding the alarm, even if some people are hurt or killed in the ensuing panic.
In other words, intention matters. And, no matter what I say about not intending for anyone to get hurt, a jury of reasonable people is entitled to disbelieve me if people were killed in a stampede that I caused by yelling “Fire!” when there was no fire. Even if my defense is, “But I really thought there was a fire,” I should be obliged to prove that I thought so for reasons that should have convinced any other reasonable person that a fire was actually in progress. Otherwise, if my lawyer is competent, they’d better be pleading temporary insanity or something like that.
So, First Amendment notwithstanding, the government may pass laws against saying certain things in certain situations—but not in any other situation. But that’s the government. What about the modern social media?
Until the Internet came along, the press, and especially the broadcast press, certainly influenced our public discourse. Conservative complaints about liberal bias were justified, even if sometimes exaggerated, as they were by Vice President Spiro Agnew in his Des Moines diatribe. No publishing company, though, ever had nearly the kind of control over public discourse that the government could have exercised. Conservative opinions could reach all who wanted to hear them and even many who would have preferred not to hear them. The mainstream press perhaps tried to discredit conservative commentators, but they could not silence them, and it would never have occurred to them to try silencing the president of the United States.
That has changed, and our nation needs to accordingly change its thinking about freedom of speech and the press. We have never perfectly honored our Constitutional commitment to them, but we have done well overall, and our previous failures cannot excuse any relaxation now. As a conservative, I do not want the government telling me what I may or may not say in the public square, but I know of no conservative principle that says I should let Facebook or Twitter tell me, either. If the free market has given them the power to control this nation’s public debate, then the market needs to give up a little bit of its freedom. Our founders gave us the Constitution as a shield against tyrannical government. In their time, corporate tyranny was not a credible threat. Now it is, and if the Constitution says there is nothing we can do about it, then it’s time for another amendment to the Constitution.