Technically, the first amendment applies only to state actors, not private entities. See Manhattan Community Access Corp. v. Halleck, Hudgens v. NLRB, and many other cases that upheld this interpretation. Private companies like Apple can restrict free speech on their platforms legally (at least as far as the first amendment is concerned).
That said, I believe in the principle of free speech, especially as envisioned by Tim Berners Lee for the Web. I wish more Americans could adhere to those principles even when the speech is not to their taste. Certainly feels like a lot of cultural backsliding happening.
> Technically, the first amendment applies only to state actors, not private entities.
That's probably not what the person you're responding to is talking about.
Americans have this unfortunate tendency to harp on and on about 'free speech' in contexts where the first amendment obviously does not apply, or, even more intriguingly/ironically, where the first amendment pretty clearly states the exact opposite.
For example, if some non-government-owned platform (such as a social network) bans a user, and that user says "My free speech rights are being infringed".
Whereas what the 1A actually states is the exact opposite: That platform has the right to ban that user, and the government is constitutionally restrained: If the government were to make a law that forces this social network to unban this user, that'd be the 1A violation.
Then there are only 3 options:
1. That user wildly misunderstands free speech. And given how common this is, 'most americans' is perhaps [citation needed] but the sentiment is understandable. It's not just that "My free speech!" is so common, it's also that articles about some incident pretty much never talk about this. Lawyers, legal wonks, legal podcasts that sort of thing - they talk about it, but, niche audience.
2. The meaning of 'free speech' in the sentence 'this social network has banned me; my free speech is being infringed' is not referring to 1A but to the concept as a general principle; a principle that is orthogonal, or even mutually exclusive with, the definition of 'free speech' the way 1A intends it.
3. They know exactly what 1A means but they are lying through their teeth in order to get some internet group ragin' going on.
If we make a habit of assuming good intentions, the nicest choice is option 2.
The somewhat famous "Section 230" covers part of this, and explains some of the pragmatic reasoning behind MCAC v Halleck: If you hold private companies responsible for having infringed free speech rights, then private companies are going to bend over backwards making clear they are not going to moderate. Anything. For any reason. Legal reasons, you see.
There's a lot of nuance lost when the Bill of Rights is being taught in US grade schools. Most kids read each of the amendments but then are given a simplified interpretation. "The first amendment guarantees a right to free speech" would have been correct enough for a test answer when I was in school, although it loses enough nuance to frequently be incorrect, because people often presume that equates to "I can say what I want without consequence and the government will protect my ability to do it", when it more accurately should probably be taught as "the government has a limited ability to meddle in other's speech"
The net effect is both that people misunderstand the 1st amendment, and they also believe that what they thought it meant is an important value.
> Whereas what the 1A actually
> states is the exact opposite:
> That platform has the right to
> ban that user, and the
> government is constitutionally
> restrained: If the government
> were to make a law that forces
> this social network to unban
> this user, that'd be the 1A
> violation.
If I build a bridge and offer it for public use for a toll, and I overhear you saying something I don't like as you travel across in your car, you think the government stepping in if I ban you from traversing the bridge solely for that reason is a 1A violation?
This principle is obvious if I was running a newspaper and printing user-submitted comments. I can have whatever inclusion policy I deem fit, or my own speech would be curtailed.
But this is now being applied by private companies in cases wildly removed from that. Meta er whoever can ban two users having a private conversation on their platform.
It seems to me that the private bridge builder in the example above has a stronger case than these companies in such cases.
Perhaps I overhear that you dislike fast-food, and I only sell billboard space to fast-food companies.
Or perhaps you think that would be just fine, and we just need to close the technological gap of being able to embed hypersensitive microphones into asphalt.
4. Americans believe companies too frequently do the government's bidding, and by allowing corporations to suppress speech, they're allowing the government to exploit that and indirectly violate their direct 1A rights.
Likewise, I think we have a miscommunication here because I agree with everything you wrote.
I'm not making a legal argument about free speech at all. I agree with your analysis on the legality there. Now that said, I do think the Biden admin crossed the line of legality with their collaboration (and a little implied threatening) Twitter and Facebook, and their whole establishing an office whose job it was to report "disinformation" on social media to the tech giants.
I'm speaking culturally. To go back to the Lab Leak Theory example when Youtube was taking down any videos that even mentioned it (even if the mentioner was a well-respected Evolutionary Biologist) wasn't illegal, but it was a total abandonment of free speech principles. It feels like it's abated quite a bit in the last year or two, but for a while there, there were ideological rakes all over the place that any mention of would get your content taken down by big tech.
Now all that being said, I do think there's a point at which the line between private corp and government starts to blur, and I do think big tech is approaching that line. For most of history, no corporation could even approach the level of power over our lives as government, but increasingly they are getting so powerful that we can't even function in society without them. I think we're approaching or past the point where regulation and/or breaking them apart is necessary to reduce the amount of power that they have over us.
As an American who thinks free speech is one of the most important rights we have, I wish the answer to your question would be a collective "yes" but unfortunately it is not.
I don't understand what you're on about. The only laws that the USA has on the books that says anything about this are either [A] recently written state laws written as vehicles to virtue signal, particularly by DeSantis in Florida, or [B] the exact opposite.
For example, the first amendment indicates that apple doesn't just have the right to tell its users of its app store to say nothing about alternate payment methods. It goes further than that: The government must not tell Apple anything else. That's stretching 1A a bit; more likely 1A says nothing at all about what Apple is doing here.
"Free Speech" is a thing americans are fond of saying, but unfortunately, considering that 1A is often called 'the free speech amendment', what that actually means is usually unclear, and in this day and age, that means it gets weaponized: Folks start harping on about free speech and pick whatever of the many conflicting definitions so happens to suit their needs at that exact moment.
Evelyn Beatrice Hall was british, not american. She's the author of "I disapprove of what you say, but I will defend to the death your right to say it".
The thing about 1A and free speech in general: Forcing somebody to say something is just as bad as forcing somebody not to say something. And, once you start talking about non-governmental entities and 'free speech', those two things are at odds. After all, if the government tells some social network that they MUST NOT ban some user or delete some posting, that is compelled speech, and that's what I meant with '1A means the opposite of what you / this case / most americans think it means'. 1A protects the right of private companies to restrict your speech. It does not protect your right to have your speech protected from being suppressed, deleted, or otherwise restrained by private actors.
In America free speech is always limited to what "I find acceptable". There's an infinite number of things that lots of Americans will find unacceptable. Swearing is beeped/censored everywhere (even on youtube), songs release "explicit" and "clean" versions, nipples are blurred on TV, some words you can't say even in an educational or karaoke setting (N-word, R-word, etc.)
I don't disagree with you, but I do think it's important to distinguish between a censored swear word or nipple, and taking down an entire video because it mentions the Lab Leak Theory at a time when that was politically unacceptable. The former may be suppressing a small element of the "speech" but it's not (for the most part) restricting the expression/transmission of ideas. It's also a very firm and defined standard that is unambiguous (i.e. here is a list of words you can't say, use substitutes to convey meaning v. here is a list of opinions you aren't allowed to express). The latter on the other hand is absolutely the suppression of ideas, which IMHO is what "free speech" is really about and why it's so important.
If you extend "speech" to "any kind of action an individual or company can do", then no. There's plenty of laws regulations that restrict what you can do in USA.
Most people who go on about free speech are the ones who clamp down the most on it and are massive snowflakes when people decide not to buy their stuff because of their speech.
Sure it is. Lots of us also go on about private property rights and freedom of association. Apple is restricting the behavior of entities doing business through them on a platform they own. The logic is that you remain free to speak - elsewhere. Meanwhile Apple remains free not to do business with you if you can't or won't accept their terms.
(Well really the legal argument is that Apple isn't the government and so the first amendment doesn't bind their policies but there's an ideological aspect in addition to the legal one.)
The issue missed by such an analysis is the outsized impact the megacorp has. Without strong competition (ie not a duopoly or even an oligopoly) regulation is required to protect consumers against practices that otherwise would be financially discouraged.
There are also a few other blindspots people here tend to have regarding regulation. In particular that sometimes detrimental behaviors exist that are perversely incentivized rather than discouraged by the market despite being obviously worse for consumers. A lot of people here seem to conveniently forget that such things are even within the realm of possibility.
Technically, the first amendment applies only to state actors, not private entities. See Manhattan Community Access Corp. v. Halleck, Hudgens v. NLRB, and many other cases that upheld this interpretation. Private companies like Apple can restrict free speech on their platforms legally (at least as far as the first amendment is concerned).
That said, I believe in the principle of free speech, especially as envisioned by Tim Berners Lee for the Web. I wish more Americans could adhere to those principles even when the speech is not to their taste. Certainly feels like a lot of cultural backsliding happening.
> Technically, the first amendment applies only to state actors, not private entities.
That's probably not what the person you're responding to is talking about.
Americans have this unfortunate tendency to harp on and on about 'free speech' in contexts where the first amendment obviously does not apply, or, even more intriguingly/ironically, where the first amendment pretty clearly states the exact opposite.
For example, if some non-government-owned platform (such as a social network) bans a user, and that user says "My free speech rights are being infringed".
Whereas what the 1A actually states is the exact opposite: That platform has the right to ban that user, and the government is constitutionally restrained: If the government were to make a law that forces this social network to unban this user, that'd be the 1A violation.
Then there are only 3 options:
1. That user wildly misunderstands free speech. And given how common this is, 'most americans' is perhaps [citation needed] but the sentiment is understandable. It's not just that "My free speech!" is so common, it's also that articles about some incident pretty much never talk about this. Lawyers, legal wonks, legal podcasts that sort of thing - they talk about it, but, niche audience.
2. The meaning of 'free speech' in the sentence 'this social network has banned me; my free speech is being infringed' is not referring to 1A but to the concept as a general principle; a principle that is orthogonal, or even mutually exclusive with, the definition of 'free speech' the way 1A intends it.
3. They know exactly what 1A means but they are lying through their teeth in order to get some internet group ragin' going on.
If we make a habit of assuming good intentions, the nicest choice is option 2.
The somewhat famous "Section 230" covers part of this, and explains some of the pragmatic reasoning behind MCAC v Halleck: If you hold private companies responsible for having infringed free speech rights, then private companies are going to bend over backwards making clear they are not going to moderate. Anything. For any reason. Legal reasons, you see.
It's a combination of 1 and 2 for the most part.
There's a lot of nuance lost when the Bill of Rights is being taught in US grade schools. Most kids read each of the amendments but then are given a simplified interpretation. "The first amendment guarantees a right to free speech" would have been correct enough for a test answer when I was in school, although it loses enough nuance to frequently be incorrect, because people often presume that equates to "I can say what I want without consequence and the government will protect my ability to do it", when it more accurately should probably be taught as "the government has a limited ability to meddle in other's speech"
The net effect is both that people misunderstand the 1st amendment, and they also believe that what they thought it meant is an important value.
If I build a bridge and offer it for public use for a toll, and I overhear you saying something I don't like as you travel across in your car, you think the government stepping in if I ban you from traversing the bridge solely for that reason is a 1A violation?
This principle is obvious if I was running a newspaper and printing user-submitted comments. I can have whatever inclusion policy I deem fit, or my own speech would be curtailed.
But this is now being applied by private companies in cases wildly removed from that. Meta er whoever can ban two users having a private conversation on their platform.
It seems to me that the private bridge builder in the example above has a stronger case than these companies in such cases.
Perhaps I overhear that you dislike fast-food, and I only sell billboard space to fast-food companies.
Or perhaps you think that would be just fine, and we just need to close the technological gap of being able to embed hypersensitive microphones into asphalt.
1 reply →
> Then there are only 3 options
I can imagine at least one more:
4. Americans believe companies too frequently do the government's bidding, and by allowing corporations to suppress speech, they're allowing the government to exploit that and indirectly violate their direct 1A rights.
> I don't understand what you're on about.
Likewise, I think we have a miscommunication here because I agree with everything you wrote.
I'm not making a legal argument about free speech at all. I agree with your analysis on the legality there. Now that said, I do think the Biden admin crossed the line of legality with their collaboration (and a little implied threatening) Twitter and Facebook, and their whole establishing an office whose job it was to report "disinformation" on social media to the tech giants.
I'm speaking culturally. To go back to the Lab Leak Theory example when Youtube was taking down any videos that even mentioned it (even if the mentioner was a well-respected Evolutionary Biologist) wasn't illegal, but it was a total abandonment of free speech principles. It feels like it's abated quite a bit in the last year or two, but for a while there, there were ideological rakes all over the place that any mention of would get your content taken down by big tech.
Now all that being said, I do think there's a point at which the line between private corp and government starts to blur, and I do think big tech is approaching that line. For most of history, no corporation could even approach the level of power over our lives as government, but increasingly they are getting so powerful that we can't even function in society without them. I think we're approaching or past the point where regulation and/or breaking them apart is necessary to reduce the amount of power that they have over us.
4 replies →
As an American who thinks free speech is one of the most important rights we have, I wish the answer to your question would be a collective "yes" but unfortunately it is not.
I don't understand what you're on about. The only laws that the USA has on the books that says anything about this are either [A] recently written state laws written as vehicles to virtue signal, particularly by DeSantis in Florida, or [B] the exact opposite.
For example, the first amendment indicates that apple doesn't just have the right to tell its users of its app store to say nothing about alternate payment methods. It goes further than that: The government must not tell Apple anything else. That's stretching 1A a bit; more likely 1A says nothing at all about what Apple is doing here.
"Free Speech" is a thing americans are fond of saying, but unfortunately, considering that 1A is often called 'the free speech amendment', what that actually means is usually unclear, and in this day and age, that means it gets weaponized: Folks start harping on about free speech and pick whatever of the many conflicting definitions so happens to suit their needs at that exact moment.
Evelyn Beatrice Hall was british, not american. She's the author of "I disapprove of what you say, but I will defend to the death your right to say it".
The thing about 1A and free speech in general: Forcing somebody to say something is just as bad as forcing somebody not to say something. And, once you start talking about non-governmental entities and 'free speech', those two things are at odds. After all, if the government tells some social network that they MUST NOT ban some user or delete some posting, that is compelled speech, and that's what I meant with '1A means the opposite of what you / this case / most americans think it means'. 1A protects the right of private companies to restrict your speech. It does not protect your right to have your speech protected from being suppressed, deleted, or otherwise restrained by private actors.
In America free speech is always limited to what "I find acceptable". There's an infinite number of things that lots of Americans will find unacceptable. Swearing is beeped/censored everywhere (even on youtube), songs release "explicit" and "clean" versions, nipples are blurred on TV, some words you can't say even in an educational or karaoke setting (N-word, R-word, etc.)
I don't disagree with you, but I do think it's important to distinguish between a censored swear word or nipple, and taking down an entire video because it mentions the Lab Leak Theory at a time when that was politically unacceptable. The former may be suppressing a small element of the "speech" but it's not (for the most part) restricting the expression/transmission of ideas. It's also a very firm and defined standard that is unambiguous (i.e. here is a list of words you can't say, use substitutes to convey meaning v. here is a list of opinions you aren't allowed to express). The latter on the other hand is absolutely the suppression of ideas, which IMHO is what "free speech" is really about and why it's so important.
If you extend "speech" to "any kind of action an individual or company can do", then no. There's plenty of laws regulations that restrict what you can do in USA.
There is also the freedom to engage in a contact.
The freedom of speech isn't restricted, apple just isn't providing a platform to speak on.
This is an anti trust issue balance against two parties ability to be bound by contract.
Most people who go on about free speech are the ones who clamp down the most on it and are massive snowflakes when people decide not to buy their stuff because of their speech.
Sorry, Fox News changed its mind in January. Come back in 2 years and they'll be back to "pro free speech" (to mock minorities).
Every American is pro free speech for the kind of speech they like.
Just never in a logically consistent manner.
Sure it is. Lots of us also go on about private property rights and freedom of association. Apple is restricting the behavior of entities doing business through them on a platform they own. The logic is that you remain free to speak - elsewhere. Meanwhile Apple remains free not to do business with you if you can't or won't accept their terms.
(Well really the legal argument is that Apple isn't the government and so the first amendment doesn't bind their policies but there's an ideological aspect in addition to the legal one.)
The issue missed by such an analysis is the outsized impact the megacorp has. Without strong competition (ie not a duopoly or even an oligopoly) regulation is required to protect consumers against practices that otherwise would be financially discouraged.
There are also a few other blindspots people here tend to have regarding regulation. In particular that sometimes detrimental behaviors exist that are perversely incentivized rather than discouraged by the market despite being obviously worse for consumers. A lot of people here seem to conveniently forget that such things are even within the realm of possibility.
and usually in a context where the concept they are thinking of (the constitution) doesn't apply (anywhere that isn't the government)
Free speech isn't good because it's in the Constitution, it's in the Constitution because it's good.