DOJ And State Attorneys General Threatening Social Media Companies Over Moderation Practices Is A First Amendment Issue
from the that's-not-how-any-of-this-works dept
Earlier this month, President Trump made it explicitly clear that he expects the Jeff Sessions’ DOJ to use its power for political purposes, protecting his friends and going after his enemies:
Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff……
— Donald J. Trump (@realDonaldTrump) September 3, 2018
Big story out that the FBI ignored tens of thousands of Crooked Hillary Emails, many of which are REALLY BAD. Also gave false election info. I feel sure that we will soon be getting to the bottom of all of this corruption. At some point I may have to get involved!
— Donald J. Trump (@realDonaldTrump) August 25, 2018
And, while the DOJ hasn’t done that concerning indictments of Trump’s friends and cronies, it appears that Sessions may be moving towards it with another “enemy” in the mind of Trump. Over the last few weeks Trump has also made it clear that he (incorrectly) believes that the big internet companies are deliberately targeting conservatives, and has threatened to do something about it.
On Wednesday, just after Twitter and Facebook appeared before Congress, the DOJ released a statement saying that it was investigating whether or not actions by the big internet companies was “intentionally stifling the free exchange of ideas.” The full statement was short and to the point:
We listened to today’s Senate Select Committee on Intelligence hearing on Foreign Influence Operations’ Use of Social Media Platforms closely. The Attorney General has convened a meeting with a number of state attorneys general this month to discuss a growing concern that these companies may be hurting competition and intentionally stifling the free exchange of ideas on their platforms.
The competition question is one that the DOJ’s antitrust division clearly has authority over, but alarms should be raised about the DOJ or state AGs arguing that these platforms are “stifling the free exchange of ideas on their platforms.” Because while — on its face — that might sound like it’s supporting free speech, it’s actually an almost certain First Amendment violation by the DOJ and whatever state AGs are involved.
There are lots and lots of cases on the books about this, but government entities aren’t supposed to be in the business of telling private businesses what content they can or cannot host. Cases such as Near v. Minnesota and Bantam Books v. Sullivan have long made it clear that governments can’t be in the business of regulating the speech of private organizations — though those are both about regulations to suppress speech.
But there are related cases on compelled speech. Most famously, perhaps, is West Virginia State Board of Education v. Barnette which said schools’ can’t make kids say the Pledge of Allegiance. In that case, the court ruled:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Forcing platforms to carry speech would clearly go against that.
Miami Herald v. Tornillo actually seems even more directly on point. It was in response to a Florida state law demanding “equal space” for political candidates, but the court ruled, pretty definitively, that as private publications, the government could not compel them to host speech they did not want to host. The ruling even discussed the issue of a lack of competition — which Sessions’ statement alludes to — and concludes that’s not an excuse for compelling speech. In CBS v. the Democratic National Committee, the Supreme Court clearly noted:
The power of a privately owned newspaper to advance its own political, social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers — and hence advertisers — to assure financial success; and, second, the journalistic integrity of its editors and publishers.
In other words, if a private speech hosting platform is too one-sided, that is for the market to decide, not the government.
So, yeah, there are concerns raised here about freedom of expression… but it’s by Attorney General Jeff Sessions and whichever State Attorneys General decide to participate in this clown show. Oh, and just to put a little more emphasis on why this is clearly a political move designed to suppress free speech rights? So far only Republican Attorneys General have been invited — a point I’m sure any court would take note of.