There has been a lot said lately about Twitter and Facebook deactivating President Trump’s accounts and Google, Apple and Amazon pulling the plug on Parler by refusing to continue carrying it on their platforms. A lot of what has been said has been said about free speech, and based on what I’m hearing, I think it’s time for a refresher course on the topic. I’ve written in this space about it before, but it’s worth repeating.
The First Amendment to the United States Constitution acknowledges and ensures that the United States government will protect the right of individuals to free speech. What that means in practical terms is that it protects individuals from prosecution or other retaliation by the government because of statements made by those individuals. It does not at all protect against actions by other private individuals or private organizations taken because of a person’s speech.
So, if a person says something, and because of that other private individuals or organizations decide to boycott their business, publicly shame them, speak harshly to them, ban them from an internet community or social media platform, fire them, cancel their TV show, stop advertising with them, or whatever, that does not violate their First Amendment right to free speech. That right is quite intact. Other people are simply exercising their right to free speech in response to what that person said. Free speech goes both ways, and other people can use it to do things to you that you don’t like that are legal and constitutionally protected.
Now again, that only applies to actions taken by private individuals or entities. If the action taken against someone because of their speech is taken by a government organization, like a public school district, police department, city, county, or state government, or the U.S. government, that is an altogether different situation. The First Amendment will apply in nearly all circumstances. How that plays out in different situations is the subject of a lot of Supreme Court cases that I don’t really have the space to get into here, but my point is that once the government becomes involved, so does the First Amendment.
So, no one’s First Amendment rights have been violated, including the president’s, but that doesn’t mean that this shouldn’t send up red flags for different reasons.
Whatever you think of what happened, the fact is that a handful of private companies had enough power to silence millions of people for speech that they didn’t like. And while these companies are under no obligation to give anyone a platform, the fact that they could silence that many people that quickly should cause anyone concern who cares about the free exchange of ideas. That’s an awful lot of power in relatively few hands. The fact that it’s not the government’s hands makes little practical difference.
Now you might say, “but Caleb, it’s a free market and they can do what they want!” And theoretically, that’s true. But if we’re going to have a serious and worthwhile discussion about this, the question must be asked: if a handful of companies can make decisions in tandem that affect the market this drastically, how free is it, really?
The mere fact that a market exists doesn’t make it free. That’s something I’ve been saying for years. Concentrated power is concentrated power. Public or private, it’s still power.
In the past, when I have said things like this to folk I know who consider themselves to be conservative, they have often downplayed or dismissed these concerns. The markets are free, they say, and that will ensure freedom and a just outcome for everyone in any circumstance that may arise. But now they are getting an object lesson in what I’ve been talking about, and from what I’m hearing it sounds like that position is being re-evaluated in those quarters.
I’m glad that is so.
Incidentally, it’s worth mentioning that most media in the United States is owned by five companies. I wrote my Master’s thesis about that. So that’s another similar situation. The truth is, that’s the situation in many sectors of American business.
So, what do we do about it?
Caleb Baumgardner is a local attorney. He can be reached at [email protected].