When it comes to free expression and the First Amendment, it’s important for us to know when it protects what we say and write — and when it doesn’t.
Case in point: Proposed Arizona House bill HB2124, “related to access to online content.” The sponsor, state Rep. Bob Thorpe, proposes to allow users or the state attorney general to sue an internet site that edits, deletes “or makes it difficult or impossible for online users to locate and access” content on the site “in an easy or timely manner for politically biased reasons.”
The bill is in line with complaints now fashionable among political conservatives nationwide that online platforms and social media sites from Google to Facebook to Twitter and others somehow exclude or downplay their views while emphasizing liberal viewpoints.
Nothing wrong with raising such concerns. The inner policies and algorithms of these web behemoths largely generally remain hidden — and the entire online world is simply too new and ever-changing to provide an accurate portrait from the outside.
So, in effect we don’t know what we’re not seeing when we search or use such sites, and those companies are free to set their own practices and rules on what we do see or post. Whether for altruistic or political motives, proposals such as the Arizona legislation would change that — except that the First Amendment rules out such government intervention in a private business.
The First Amendment guarantees against content or viewpoint discrimination — and by extension, access to information — apply to government, not private individuals or companies, which have their own First Amendment rights to decide what they will or won’t say and post. And even legislation cannot empower individuals (or attorneys general) to override that constitutional protection by using civil penalties rather than criminal law — see the old legal adage, “you cannot do by the back door what you cannot do by the front door.”
Moreover, do we really want to override the First Amendment with such “open access” laws? Turn to another adage — the “law of unintended consequences.” Requiring internet providers to permit unrestrained access and right to post material denies such companies the ability to respond to their consumers’ demands on materials that can range from offensive to repulsive. Thorpe’s bill excludes libelous or pornographic material, but what about currently banned content on most social media sites, such as videos that show public assaults or are intended to bully or harass? Would internet companies and social media sites be mandated to carry deliberate misinformation about health issues?
There is a small window in the wall of First Amendment protection that could possibly permit regulation of private online companies, called the “public function exception.” In effect, it turns a private concern into a government operation when performing an “essential government function.” The exception rests on a 1946 Supreme Court decision, in Marsh v. Alabama, involving a so-called “company town.” The court reasoned that since the town functioned as a government entity, not a private enterprise, it had become one.
But the court has refined its ruling through the years, and in 1974 held that such a conversion takes place only when the private concern is providing services exclusively done by government. Clearly, providing an online platform or a social media site fails to meet that test.
Some critics of the current social media policies argue that those sites are effectively a “digital public square” by virtue of their ubiquitous presence in modern life. Some reports say that more than seven in every 10 Americans used social media sites in 2018 — and that the number increases each year. But the very nature of the web, in which start-ups and competing sites of all kinds arise constantly, would also seem to prevent isolating even dominant companies for such a quasi-government role with the required “exclusive provider” condition.
As shown in other examples where First Amendment protections come into conflict with practices or actions that offend, or seem to run counter to the “marketplace of ideas” concept of the widest exchange of ideals or viewpoints, the “court of public opinion” often functions more effectively — and more quickly — than legal action or legislation. Public discussions and resulting social pressures to combat online bullying or videos showing assault or even murders have demonstrably changed those private provider policies on what is posted and permitted, for example.
A shortcut through First Amendment protections may seem an expedient method at the time — but for very good reasons, free expression advocates should resist “quicker” solutions for some, in the name of protecting those long-term freedoms for us all.