Twitter and the Freedom of Speech – AndrewP.Napolitano 6/16/22


“Congress shall make no law … abridging the freedom of speech, or of the press.”
–First Amendment to the U.S. Constitution

When James Madison authored the language that would become the First Amendment, he and his colleagues feared that the new federal government might enact legislation that would interfere with personal liberty. That fear was shared by many in the 13 states that had just ratified the Constitution. Indeed, five of the states conditioned their ratification on the addition of a Bill of Rights.

Madison — who had been the scrivener of the Constitution in 1787, was, by 1791, a member of the House of Representatives and the House’s resident expert on the Constitution — was designated by his colleagues as the drafter of the Bill of Rights.

Madison’s language in the First Amendment’s is clear; it only restrains Congress. Yet, recognizing the natural origins of the freedom of speech and aware of the universal governmental animosity to free speech, and taking account of the 14th Amendment’s imposition of due process upon the states, the courts expanded the scope of the First Amendment so as to impose its restraints upon all government — including the president, the judiciary, the states and their subdivisions.

During the Civil War and World War I, Presidents Abraham Lincoln and Woodrow Wilson incarcerated folks for their speech and argued that the First Amendment only restrained Congress, not the president. Today, such an argument would be dismissed out of hand in any court.

Today, the First Amendment protects the freedom of speech from all government.

But the First Amendment only restrains the government. It does not restrain private persons, whom lawyers call nongovernmental actors.

The old counterpoint that “the First Amendment does not permit shouting ‘fire’ in a crowded theater” is inaccurate. If the theater is owned by nongovernmental actors, the First Amendment plays no role whatsoever in regulating or permitting the shouting; the property owner does. There are sound reasons why shouting fire in a crowded theater is actionable under the law, but the First Amendment is not among them unless the government owns the theater.

I offer this brief background as a prelude to addressing the latest turn of events concerning social media platforms that suppress speech of which they don’t approve. Because the social media companies are nongovernmental actors, they are free to infringe upon the speech of their clients and customers for any reason they choose that does not violate public policy, such as infringement based on race, gender, religion, sexual orientation or place of origin.

Yet, a nongovernmental actor that enters into a symbiotic relationship with the government may lose its freedom to suppress speech and be subjected to the same restraints as the government.

Thus, Twitter, for example, is free to suppress any speech and any speaker because of the content of the speech, unless it is doing the government’s bidding. If it is, if Twitter is doing for the government what the government cannot do on its own — suppress speech because of its content — and if sufficient evidence of this is properly before a court, the court may very well invoke the state action doctrine, which will impose the restraints of the First Amendment upon Twitter.

I use Twitter as an example because last week two U.S. senators obtained and revealed emails between officials of the Department of Homeland Security and Twitter executives contemplating how Twitter can suppress speech that the DHS believes constitutes mis- or dis- or mal-information. This is dangerous for personal liberty and, frankly, dangerous for Twitter.

The courts have ruled that when a governmental actor — here the DHS — and a nongovernmental actor — here Twitter — are so intertwined for their mutual benefit, and someone — here those whose speech Twitter has suppressed because of its content — is harmed thereby, the courts will impose First Amendment restraints upon the nongovernmental actor….

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