The Journal Gazette
Tuesday, January 12, 2021 1:00 am


First things first

Free speech protections frequently misunderstood

“Inconceivable!” shouts Vizzini, a character played by actor Wallace Shawn in the 1987 fantasy classic “The Princess Bride.”

“You keep using that word,” counters movie protagonist Inigo Montoya, played by Mandy Patinkin. “I do not think it means what you think it means.”

Similar exchanges are being had online, where social media outlets including Twitter and Facebook moved to ban the accounts of President Donald Trump and others in the wake of a violent pro-Trump riot last week at the U.S. Capitol. Tech behemoths Google, Apple and Amazon Web Services also moved to squash access to Parler, a social media app that featured posts about plans for the violence in Washington, D.C., firing squads and calls for people to bring weapons to President-elect Joe Biden's inauguration.

Parler CEO John Matze is among many who have lashed out, saying the moves violate constitutional rights.

He told Fox News Sunday it is “extremely scary” and that the companies are moving forward with efforts to “stifle free speech and competition in the marketplace.”

But those words – free speech – do not always mean what he thinks they mean, and it's important to understand why.

The First Amendment indeed protects speech and bars Congress from making laws to limit it or the press. But the initial item in the Bill of Rights does not require companies to provide a platform for that speech.

The companies can regulate speech on their own, and Twitter officials said they took action against what had been Trump's preferred method of communication “due to risk of further incitement of violence.”

“We believe the risks of allowing the President to continue to use our service during this period are simply too great,” Facebook CEO Mark Zuckerberg said in a statement. “Therefore, we are extending the block we have placed on his Facebook and Instagram accounts indefinitely and for at least the next two weeks until the peaceful transition of power is complete.”

Biden will be inaugurated Jan. 20.

Muddying things is Section 230, a portion of the 1996 Communications and Decency Act that shields social media companies from liability when hosting content made by users. The broad legal protections have drawn criticism from lawmakers, including Republican U.S. Rep. Jim Banks, who tweeted in November that Democrats and big tech are “starting to treat the 1st Amendment like they treat the 2nd.”

The Second Amendment guarantees a right to keep and bear arms.

Indiana Attorney General Todd Rokita was sworn in Monday, but tweeted support for Trump last Friday. He followed up a day later with a statement condemning the violence at the Capitol and saying his tweet was “an experiment in free speech.”

“Private companies can control speech on their property, just as private citizens can,” he wrote in the statement posted to his campaign website. “However, when those private companies are effectively monopolies, controlling the entire dialogue of a nation, and using that control to suppress certain speech, we are compelled as a people and as elected officials, through the democratic process, to uphold Constitutional protections on free speech.”

It's fair to question the power of technology giants such as Facebook and Google, which have and continue to gain outsize power in the online intellectual marketplace of ideas – and some already have.

U.S. Reps. Tom Malinowski of New Jersey and Anna Eshoo of California – both Democrats – have filed legislation allowing for greater liability under Section 230.

Banks joined last year with several other House members on a bill to amend that portion “to stop censorship.”

The Federal Trade Commission has sued Facebook for “maintaining its personal social networking monopoly through a years-long course of anticompetitive conduct.”

There are enough reasons to check the power of those companies. Violating the First Amendment is not among them.

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