Not Your Founding Fathers' First Amendment

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

How do we remain true to the ideals of the Constitution’s authors while adjusting to the realities of change and the lingering effects of an imperfect republic? Unfortunately, many Americans remain ignorant of both the original intent of the amendment and its current legal interpretations. We’ve fallen prey to countless misconceptions and lies, including the following:

 Social media bans and website delisting violate the First Amendment

In Knight Institute v. Trump, the Knight First Amendment Institute at Columbia Law School sued Donald Trump for removing people from his Twitter site. According to Knight’s Executive Director, Jameel Jaffer, “This case stands for a principle that is fundamental to our democracy: government officials can’t suppress speech simply because they disagree with its message.”

The Supreme Court rejected this argument and vacated a lower court ruling for the plaintiffs. As explained by former ACLU lawyer David Goldberger,"The question is whether these private platforms are the same as newspapers refusing to run political ads, or whether it's the same as the government saying you can't talk.”

After the January 6 insurrection Trump raised similar complaints about social media banning and delisting him, calling them "unfair." Washington Post correspondent Will Oremus explained that this is nothing but partisan debate, instead of a reasonable Constitutional discussion.  Oremus seems to agree with Goldberger when he says, “Under U.S. law, social media companies have generally been understood to enjoy the same broad leeway as traditional media in deciding whose views to air - and whose they'd rather not.”

Social media have the right to ban hate speech.

As explained above, social media have a constitutional right to ban whomever they choose, not just hate speech. The Trump bans, for the most part, came after repeated violations of rules Trump agreed to in using those platforms. Whether they did so in a capricious manner, as explained by Kara Swisher is a matter of contractual law, not a Constitutional concern.

Sadly, much of this debate hinges on political ideology, rather than an understanding of constitutional law. The danger in this is that we may soon reach the point where political fashion and extremist views preempt reasonable judicial interpretation. One group might argue that protected speech includes only what it agrees with or finds inoffensive, at the same time advocating unfettered access to all media for its own purposes.

We must make sure that understandable anger over recent violence and bigotry don’t lead to constitutional changes that undermine our free expression. In short,  be careful what you wish for.