Wednesday, May 12, 2021

The Incorporation Of Free Speech Built Around A Presumption Of Corporate Censorship

jonathanturley |  Under a free speech approach, cakeshop owners have a right to refuse to prepare cakes that offend their deep-felt values, including religious, political or social values. Thus, a Jewish cakeshop owner should be able to decline to make a “Mein Kampf” cake for a local skinhead group, a Black owner to decline to make a white supremacist-themed cake, or a gay baker to decline to make a cake with anti-LGBT slogans. While these bakers cannot discriminate in selling prepared cakes, the act of decorating a cake is a form of expression, and requiring such preparation is a form of compelled speech.

In the same way, NFL teams have a free speech right to prevent kneeling or other political or social demonstrations by players during games, Citizen’s United has a right to support political causes — and, yes, Facebook has a right to censor speech on its platform.

Free speech also allows the rest of us to oppose these businesses over their policies. We have a right to refuse to subsidize or support companies that engage in racial or content discrimination. Thus, with social media companies, Congress should not afford these companies legal immunity or other protections when they engage in censorship.

These companies once were viewed as neutral platforms for people to exchange views — people who affirmatively “friend” or invite the views of others. If Big Tech wants to be treated like a telephone company, it must act like a telephone company. We wouldn’t tolerate AT&T interrupting calls to object to some misleading conversation, or cutting the line for those who misinform others.

As a neutral platform for communications, telephone companies receive special legal and economic status under our laws. Yet, it sometimes seems Facebook wants to be treated like AT&T but act like the DNC.

In defending Big Tech’s right to censor people, University of California at Irvine law professor Richard Hasen declared that “Twitter is a private company, and it is entitled to include or exclude people as it sees fit.” That is clearly true under the First Amendment. It also should be true of others who seek to speak (or not speak) as corporations, from bakeries to sports teams.

Yet, when the Supreme Court sent back the Masterpiece Cakeshop case in 2018 for further proceedings, an irate House Speaker Nancy Pelosi (D-Calif.) declared: “Masterpiece Cakeshop is a commercial bakery open to the public, and such services clearly must be made available to the public on equal terms … No business or organization open to the public should hide their discriminatory practices behind the guise of religious liberty.” But Pelosi applauded when social media companies barred some members of the public based on viewpoint discrimination on subjects ranging from climate change to vaccines to elections.

The difference, of course, is that Masterpiece Cakeshop was willing to sell cakes to anyone but refused to express viewpoints that conflict with the owners’ religious beliefs. Conversely, social media companies like Twitter and Facebook are barring individuals, including a world leader like Trump, entirely from their “shop.” And, taking it one step further, Facebook has declared it will even ban the “voice of Donald Trump.”

Big Tech is allowed to be arbitrary and capricious in corporate censorship. However, our leaders should follow a principled approach to corporate speech that does not depend on what views are being silenced. Because Elizabeth Warren was right. This “never was about a cake” or a tweet or “likes” for that matter. It was always about free speech.


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