With 1st Amendment Friends Like These

That Jameel Jaffer wrote an op-ed against laws in Texas and Florida seeking to limit and control the free speech of social media is hardly surprising. After all, Jameel is the Executive Director of the Knight First Amendment Institute at Columbia University. Of course he would be critical of laws that facially violate the First Amendment. After all, isn’t that the purpose of Knight-Columbia, to defend the…oh, crap.

The companies are right that the laws violate the First Amendment, but some of the arguments they are making are deeply flawed. If these arguments get traction in the courts, it will be difficult for legislatures to pass sensible and free-speech-friendly laws meant to protect democratic values in the digital public sphere.

This is the proverbial, “I support free speech, but” argument, which means one doesn’t support free speech. This back-door point isn’t really about the laws in Texas and Florida, though Jaffer does explain why they were enacted (to protect against social media choosing which political positions get air on their platforms) and to criticize their efforts to force social media to host stuff it chooses not to. Like Trump.

But it’s not because Jaffer wants to champion the free speech rights of businesses to be free of government interference and control. It’s because he wants it to be free of Republican control while still be subject to “sensible and free-speech-friendly laws meant to protect democratic values.” Or in other words, Democratic control in euphemism-speak.

The companies are correct that the two laws discriminate against certain platforms based on their perceived political views — and two federal district courts have enjoined the laws pending appeal. What’s concerning is that the companies have made arguments that go much farther.

At this juncture, one very important point needs making, and sadly, Jameel neglects to do so. Social media companies, like any other private companies (and no, the fact that their stock is publicly traded does not make them public entities), are protected by the First Amendment. They are protected against control by Florida, Texas and a Democratic Congress in Washington. They are not half protected, like half pregnant, but protected.

For instance, they contend that the courts should extend to social media platforms exactly the same very broad First Amendment protections that have been afforded in the past to newspapers. They also argue that any law that burdens their exercise of “editorial judgment,” however minimally, should be deemed unconstitutional. These arguments are deeply misconceived and would, if the courts agree with them, pre-empt even laws that do not share the Florida and Texas laws’ fundamental defects.

Very sneaky. As Jameel goes on to argue, there are aspects of social media that are similar to newspapers and aspects that aren’t, which would be a perfectly fine discussion if it were remotely relevant to the legal issue at hand, whether social media’s editorial judgment was protected by the First Amendment. Did I mention it’s protected because there is no exception to the First Amendment holding that social media, unlike other private entities, is unprotected?

But the last sentence reiterates the crux of the problem, that these arguments are “deeply misconceived” as if the differences between social media and newspapers are of any legal consequence, because they would “pre-empt even laws” that Jaffer likes. Had this been a First Amendment-friendly op-ed (see, I can use euphemisms too), it would have expressly clarified that the “fundamental defects” are just as fundamental and just as defective when imposed by friendlies as enemies.

The truth is that social media platforms are like newspapers in some ways but not others. Like other media organizations, social media companies sometimes make decisions about which content to publish, and they sometimes add their own voices to public discourse — as they do when they attach labels to users’ posts. When the companies engage in these activities, they are exercising the kind of editorial discretion that the Supreme Court has protected against government interference again and again.

The trick here is subtle, but important. What Jameel describes is just the basic exercise of First Amendment rights, free speech, just as I do here and if you had a blog, you might too. But he characterizes it as “editorial discretion,” which isn’t false, but is language that comes from the press sphere, making it all seem far more newspaperish than just your basic free speech.

But social media platforms are different from newspapers in important ways. They are primarily vehicles for others’ speech, rather than their own. They do not exercise close curatorial control over the content they publish. They do not take responsibility for the content they publish in the same way that newspapers do — and the law does not require them to. There is also an incredible disparity in scale between (many) social media platforms and newspapers. Over the course of a day, the newspaper you are reading publishes a couple of hundred articles, but the big platforms publish hundreds of millions of posts.

Each of these differences is correct, and so what? What material difference does it make to the exercise of, and protection of, First Amendment rights that social media publishes “hundreds of millions of posts” rather than a couple of hundred?

But the companies’ arguments would make it almost impossible for legislatures to enact carefully drawn laws that protect the integrity of the digital public sphere. They would make it difficult for legislatures to impose even modest transparency requirements on the companies, to require the companies to share data with academic researchers or to require them to provide explanations to users whose posts are removed or whose accounts are suspended. They would also make it difficult for legislatures to pass straightforward privacy laws limiting the information companies can collect and how they can use it.

Transparency sounds nice, and who wouldn’t want explanations to users who posts are removed? But the question isn’t whether Jameel, or I, like these ideas, but whether they can be compelled by the government on private entities who possess the same First Amendment -protected rights as you and me. As for protecting the privacy of user information, it’s not at all clear why that’s implicated here at all. It seems as if he just slipped that in, hoping no one would notice.

Even if you agree that these are salutary measures, once we take that first step onto the slippery slope of regulating social media, the steps that follow, like prohibiting “hate speech” or “disinformation,” are just baby steps away. But then, if free-speech prohibitions are “sensible,” how can we doubt such a good friend of the First Amendment as Jameel Jaffer and the Knight Institute that Florida and Texas laws are bad but the ones he likes will be good?

10 thoughts on “With 1st Amendment Friends Like These

  1. B. McLeod

    That one faction alone should have “free speech” is always part of the drive to establish totalitarian rule. Sadly, where it succeeds, even the speech within the favored faction ultimately has to conform to dictates from the top. The passionate foot-soldiers of the movement will be “free” to duck speak the mandatory dogma.

  2. El_Suerte

    He slipped in user privacy because various parties are making first amendment arguments against digital privacy laws. Their basic argument is that collecting and using user data is protected because it allows them to communicate with potential customers. Ergo, banning those activities is, in effect, banning protected speech. Most of these state laws went into effect last year, so there hasn’t been any really big wave making litigation yet.

    There are, afaict, some arguments he could have made for some of the things he advocated for based on commercial speech and computer code 1a principles, but it’s not as sexxy as suing politicians over Twitter blocks.

    1. SHG Post author

      People make silly args such as collecting private information being a 1st A issue all the time. That doesn’t make it any more a 1st A violation than a HIPPA (error intended) violation.

  3. Pedantic Grammar Police

    Republicans and Democrats agree that the first amendment must be destroyed. The only argument is over what path we should take to get there.

  4. Kathryn Kase

    Mr. Jaffer seems to be making the case for a government apparatus that regulates social media companies, just as the FCC apparatus regulates interstate and international communications by radio, television, wire, satellite and cable in all 50 states. Do we really want the Fairness Doctrine resurrected so that it can be applied to social media? And how would that work?

    1. SHG Post author

      Before we dive into the merits of the substantive nitty gritty of what Jaffer “seems to be” making, can we wait until he, ya know, makes it? I realize I’m probably the only one here who can’t see into the future, but humor me, please?

  5. cthulhu

    Check out the big brain on Jameel! You’re a smart motherfucker. That’s right. The 1st Amendment. What’s in this?

  6. Pingback: Catching Up on the 11th Circuit Appeal in NetChoice v. Moody Over Florida's Social Media Censorship Law - Technology & Marketing Law Blog

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