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:

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.

Filed Under: compelled speech, content moderation, first amendment, free speech, jeff sessions, pressure, state attorneys general


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  1. This comment has been flagged by the community. Click here to show it
    identicon
    John Smith, 10 Sep 2018 @ 5:15pm

    Re: Re: Re: Re:

    Hooters once claimed to be an entertainment venue except from discrimination laws, yet an attorney pointed out that they claimed to be a family-friendly restaurant in their zoning applications.

    Ad hominem fallcy. I'm talking about the difference between ignoring and censoring. I have no difficulty getting my message out in enough places to worry about censorship. I am commenting on others but apparently you want to personalize your argument.

    The terms "racist" and "sexist" are subjective, yet the way some try to9 define them shows a clear political bias. Reality doesn't change just because the left (or right) doesn't like it. A good example was Australia, where men were called sexist for claiming divorce courts were biased in favor of women. Women ignored this and celebrated the legal climate...until rich men started refusing to marry them due to the unreliability of prenups. Voila! The law is changed so that courts can consider them. We're seeing a similar evolution with the Marriage Strike in the US.

    Whether intientional or not, you're advocating the type of doublespeak which occurred in the Soviet Union, where public "reality" was dictated by force rather than facts, but private reality guided behavior. Even now some woman just wrote an essay about how a man who asked for consent during sex didn't bother asking for consent qafter ghosting her after sex, since the law didn't require it.

    Here's an academic journal which suppressed an article about why more men are high-achieving nitellectuals than women:

    https://hotair.com/archives/2018/09/08/scientific-paper-male-variability-made-disappear/

    the top levels of science, chess, and anything requiring objective intellect tends to be overwhelmingly male. Calling it "sexist" doesn't change that. the current climate makes it impossible to argue even with facts that don't fit the PC narrative, but that's like telling someone with cancer that they don't have a tumor. The tumor will continue to grow until its presence must be acknowledged.

    #metoo has women admitting to abuse, but in the course of that they are also admitting to covering up the abuse for decades and enabling further abluse. How many women would not have been abused were it not for the first victims keeping quiet to protect their income? Fearing retaliation is an excuse, but they had no fear of other women being harmed.

    How many women cover up for abusive men until their children are abused, and even then how many cover up when their children are abused by their husbands or lovers? the PC left wants to open "honest discussion" and debate and then shut it down when it takes turns they don't like. Discourse and debate do not work that way.

    On a personal level, I can point this out once to soimeone, and if they respond as you have it is best simply to ignore you and let reality, not your political whims, dictate my future behavior. A smart man isn't going to throw his life away on marriage just because some feminist tells him divorce courts aren't biased.

    If a fat woman tells a pretty woman that she shouldn't have been hired because the woman's husband wanted to #metoo his new intern, the wife can deny it, and inevitably will whine ten years later that hubby left her fo a new intern. Reality ignored by political pressure is just like a tumor ignored by someone indenial even when the x-rays show they clearly exist.

    People can lie or deceive all they want. those who continue to engage these people are wasting time and energy and making it easier for those who do not waste that energy to thrive. In the late 1970s, men were toldthat "nice guys" like Phil Donahue were the near "alpha males." Dumb men listened, while smart men saw Reagan, Arnold, and Stallone becoming the type of men that women reallyw anted. those who ecame "simps" wound up in the friendzone, while the men who were put down for being "sexist" got laid.

    If oen side needs to censor the other based on ad hominem insults, it would appear that the side that supposedly needs to be silenced is correct. Historical precedent suggests this very strongly.

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