Taking Free Speech Seriously

Can the government prevent Big Tech from censoring political and cultural voices on their platforms? Can the government regulate these platforms to compel speech the government wants to hear and to prevent speech it believes may harm innocents? If you believe -- as I do -- in natural rights, minimal government and that owners of private property can use it as they see fit, the short answers to both questions is NO.

These questions arise from a vicious Senate inquisition last week, during which a senator who never met a war he didn't want someone else to fight accused Facebook and others of having blood on their hands because they permitted speech on their platforms that the senator believes led to teen suicides.

Can the government regulate harmful and hurtful speech? Is the rash of teen suicides constitutionally a federal matter? Can Congress constitutionally berate private persons because Congress hates or fears the speech they use or permit?

Here is the backstory.

The freedoms of thought, speech and expression are natural rights. Just as one can naturally think as one wishes, one can say what one thinks and publish what one says. Speaking and publishing are also constitutional rights since the First Amendment expressly protects them from government infringement. A natural right comes from our humanity, not from the government.

Speech is second nature to us, and in America -- for the most part -- speech is free. In this context, the word "free" doesn't mean "without cost." It means "without a government permission slip or reprisal."

The history of free speech in America is a tortuous one. In 1798, John Adams used the Alien and Sedition Acts to punish speech critical of himself. In the 1860s, Abraham Lincoln arrested newspaper reporters and editors critical of him. During World War I, Woodrow Wilson arrested students who urged draft resistance by reading the Declaration of Independence aloud in public. And after 9/11, George W. Bush instituted so-called free speech zones, outside of which the feds could arrest those who used speech the government hated. None of this was constitutional.

In all of these interferences with speech, the government did the interfering. Indeed, the reach of the First Amendment is limited to government. Even though it states, "Congress shall make no law," today, that language applies to all government -- local, state and federal. Congress cannot outlaw speech; neither can a state legislature or a city council. The feds cannot interfere with speech; neither can state or local officials.

Can executives at Facebook ban speech with which they disagree and permit speech that the government says is harmful? The short answer is YES.

Facebook operates a business that consists of making a digital bulletin board available for all. The bulletin board is private property. The owner of private property who invites others onto his property for the benefit of both can establish ground rules for the use of that property.

...continued

swipe to next page