Ten days ago, I vigorously and explicitly waived in this direction - The Unrivaled Power of Google's Coalition of the Connected - I'm going to try again today. Once you accept that corporations are people under law, and that they wield exponentially greater power and thus rights under law - the nature of our current predicament becomes very straightfoward, simple, and plain.
crushlimbraw | The government has outsourced tyranny. Let’s see how this black magic is performed.
Expression of Viewpoints is Guaranteed to be Free from Government Abridgement, Even if the Viewpoints are Hateful…
The First Amendment to the United States Constitution is a remarkable provision that has, for centuries, protected Americans from the abridgment of their freedom of speech by their government. Even so-called “hate speech” is protected.
The relevant provision states that “Congress shall make no law abridging the freedom of speech.” As written, the guarantee of free speech originally applied only to the federal government. However, the Supreme Court ruled in Gitlow v. New York that the guarantee had been “incorporated” in the Fourteenth Amendment and the guarantee is now applied to all state and local governments as well.
Now, in practice, there are laws regulating speech (you cannot shout “fire” in a crowded theater, and so on), but such regulations are generally “time, place, and manner” restrictions. Our Courts have universally frowned on what is called viewpoint discrimination:
Viewpoint discrimination is a form of content discrimination particularly disfavored by the courts. When the government engages in content discrimination, it is restricting speech on a given subject matter. When it engages in viewpoint discrimination, it is singling out a particular opinion or perspective on that subject matter for treatment unlike that given to other viewpoints.
And, yes, viewpoint discrimination explicitly includes hateful, hostile, and offensive viewpoints. This position was unanimously upheld by the United States Supreme Court in Matal vs. Tam. Justice Samuel Alito wrote:
Speech may not be banned on the ground that it expresses ideas that offend.
The disparagement clause denies registration to any mark that is offensive to a substantial percentage of the members of any group… That is viewpoint discrimination in the sense relevant here: Giving offense is a viewpoint.
Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful, but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’
A more explicit statement could not be made. Speech may not be banned for being offensive or hateful. Giving offense is a viewpoint. There is no “hate speech” exception to the First Amendment.
But Expression of Viewpoints is Not Guaranteed Against Private Abridgement
Government cannot regulate your expression of your viewpoint - but corporations can.
Most people understand that the First Amendment does not apply to private actors on their private property. A person or corporation can choose to allow free speech in their home or business, or can choose to regulate free speech, even viewpoints, as they deem. This “exception” to the First Amendment has been the case since the foundation of Anglo-American law, and it is absolutely necessary to protect the rights of property owners.
For instance, if I am running a bicycle shop, I am absolutely permitted to prevent my employees from putting up posters that say “bicycles suck” or telling my customers to “buy a scooter.” Likewise, if I am running a video game news site, I am absolutely permitted to tell my journalists not to write about the beauties of Sistine Chapel instead. And if I invite you to my home to binge-watch Babylon 5, and you express the offensive viewpoint that Star Trek is better, I am altogether within my rights to make you leave.
Admittedly, there have been occasional exceptions to this rule under the so-called state actor doctrine. Most notably, the US Supreme Court ruled in Marsh v Alabama (1946) that the First Amendment fully applied to expressive activities on the company-owned sidewalks and streets of a company-owned town. The precedent of Marsh v Alabama was expanded in Amalgamated Food Employees Union v Logan Valley Plaza (1968) then overturned in Hudgens v NLRB (1976). Since Hudgens, the state actor doctrine has waned in importance, despite numerous conservative efforts to sue online platforms.
We will put aside the so-far toothless Section 230 for a discussion another day. In general, private corporations can regulate the expression of viewpoints, even though government cannot, and that’s the law.
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