Let's Discuss: The United States Constitution - First Amendment

[Arthfach]

So as we all are aware, there is a near constant deluge of people saying "but my freedom of speech," all the time. You can see it across social media, in political campaigns, advertisements, references on TV and the radio, in cautionary tales, and generally anywhere the concept of (perceived) censorship crops up. So that leads a lot of people to ask the question, "What, exactly, does the first amendment of the US Constitution really guarantee me, and what is just folk lore?" Let's take a look - bearing in mind that this will only be covering part of the first amendment, not the amendment in its entirety.

Let's Lay the Groundwork

So that everyone is on the same page with exactly what we will be talking about here, let's pull up the first amendment in its entirety so that we can fall back to it for reference.

US Constitution - First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

For our purposes, we will condense to the specific part as follows: "Congress shall make no law [...] abridging the freedom of speech[.]" While freedom of religion, freedom of assembly, freedom of the press, and freedom to petition the government are all important, they are not what we are going to be covering here - although the basic principles would still apply, so take that for what it's worth.

Enough Preamble, Get to the Good Stuff

The very idea of freedom of speech speaks to basic principles that have been long held by people in the United States to mean that, generally, we believe that individuals should not be punished by the government for the content of their speech. This includes, but is not limited to: actual speech, writing, performance & entertainment, and monetary expenditures in the context of political lobbying. Or to put it another way, the general consensus in the United States is that we believe that you can say or do what you want without fear of the government coming to punish you for expressing your opinions and feelings about a wide variety of topics.

"Hey, bear, you keep saying 'the government'. Doesn't freedom of speech apply to everyone? If I have a right to express myself, that means nobody can infringe on it, doesn't it? Isn't censorship illegal?"

Welcome to the number one, biggest and most poisonous misconception about freedom of speech as guaranteed by the first amendment. There is no restriction on private censorship of speech. What does this mean? It means that you are never guaranteed to be able to use someone else's property to express yourself - that being someone's front lawn, posting fliers in a business, sending a mass email blast to millions of people, or virtually shouting on social media. Every one of those - yes, even social media - are privately held places where the first amendment has the least amount of power. And I do mean "the least," not "none," because it still binds the government from being able to punish you if your speech is allowed in the first place. What it does not do, however, is stop the owner of the platform from saying, "No, I don't want this to be spewed here, you are not welcome," and forcibly ejecting you from the space. Or to put it another way - you have the right to speak, but you do not have the authority or power to make other people amplify your speech, or even listen to it.

"Okay, fine, but why do corporations invoke the first amendment when they talk about banning people on social media? Why do their rights override mine?"

To answer this, we go back to the actual text of the Constitution. The only guarantee regarding speech that is given is the right to speak. You are not guaranteed a platform to do it, nor are you guaranteed a right to have people be forced to listen. And this plays into banning in a fun little way - your first amendment rights are not infringed by someone ejecting you from their property, real or virtual. You have the right to speak and you can speak completely freely on any property that you own. But with social media accounts, you don't actually own them. You have access rights, generally considered to be exclusive, but actual ownership remains with the company providing the access. This is why you agree to terms of service and various policies - you are agreeing to play by someone else's rules so that you can get access to the property that you wish to utilize.

Corporations - or any private property owner - reference their rights to freedom of speech because of this key fact. Not only do I have the freedom of speech for myself on my property, but I have the freedom to amplify or suppress speech without government interference. In doing so, I am exercising my freedom to speak - or not speak - since what is expressed on my property is often construed as agreement with the actual speaker. And the individual never gets to speak for another without the secondary party's consent. Which rolls us quite merrily into 47 U.S.C. § 230, or as it's more commonly known, simply "Section 230."

Oh No, More Law?

It's time to focus in on the Internet, and yes, there is more law. Specifically, we will be looking at the following section of the law, 47 U.S.C. § 230(c).

47 U.S.C. § 230(c) (Paragraph spacing edited for clarity. No content has been altered.)

(c) Protection for "Good Samaritan" blocking and screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of-

    (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

    (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

I could go into a long breakdown here, but let me just highlight the most important part. As the law is written right now, the "provider," that is, the owner of the private property (such as social media, a forum, a web service provider, etc.) has any liability for good faith moderation. And no, in spite of what may, many people love to argue, there is no distinction between a "publisher" or "provider" - that is, an owner does not have to be content neutral or moderate perfectly in order to be protected under Section 230. They just have to make a good faith attempt - and that includes any materials the owner considers objectionable. Or to put it another way, Section 230 guarantees the freedom of speech (expression) of the owner of private property on the Internet by allowing them to tell people to get off their (virtual) lawn.

What Does this Mean?

Basically, here's the takeaway: The first amendment to the US Constitution only provides one guarantee - that you will not be punished by the government for your speech. It does not grant you the right to speak using someone else's property, nor does it grant you the right to have anyone listen. It does not grant you immunity from criticism and, in fact, it encourages those with differing ideas to speak them against you.



Please feel free to post questions and thoughts below and I am happy to discuss them and, if good points or questions are raised, to amend this post with more information!

[dzamie]

As always, relevant xkcd:

To paraphrase the comic's title-text, if "it's not illegal for me to do this" is your best and go-to defense, you're not on the best argumentative grounds.

[Arthfach]

I do so love that comic.