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After Facebook’s oversight board this week upheld the social media giant’s continuing ban of former President Trump, the response of Rep. Ilhan Omar (D-Minn.) captured the visceral joy of many on the left: She posted a series of laughing emojis.
Welcome to Free Speech, Inc.: the Democratic incorporation of free speech built around the a presumption of corporate censorship (for some).
Of course, Democrats insist they are not attacking free speech, just combating “disinformation.” After all, they say, private companies have every right to control speech — unless you are, say, a bakery opposed to preparing a cake for a same-sex wedding, or a company contributing to political causes. The current mantra defending Facebook’s corporate speech rights seems strikingly out of sync with years of Democrats and political activists demanding the curtailment of such rights.
When Masterpiece Cakeshop in Colorado refused on religious grounds to make a cake for a same-sex wedding, Sen. Elizabeth Warren (D-Mass.) denounced the bakery’s claim of free speech: “It was never about a cake — it’s about making sure no one has a license to discriminate against LGBTQ+ Americans.” When the Supreme Court ruled in the Citizens United case that corporations have free speech rights to participate in politics, Warren was appalled. She has long rejected the notion that corporations have the constitutional rights like individuals: “Corporations are not people. People have hearts. They have kids. They get jobs. They get sick. They cry. They dance. They live. They love. And they die.”
Notably, Warren felt that one company (Masterpiece Cakeshop) can be forced to speak while another corporation (Facebook) should be able to stop others from speaking. When Facebook barred Trump, Warren declared: “I’m glad that Donald Trump is not going to be on Facebook. Suits me.” House Intelligence Committee Chair Adam Schiff (D-Calif.) also celebrated and added: “Facebook must ban him. Which is to say, forever.”
When free speech concerns are raised over corporate censorship, Democrats often drop references to “free speech” violations and instead address “First Amendment” violations. Indeed, when Trump objected to the ban on Twitter as “banning free speech,” a host of media outlets ran stories like: “Fact Check: Did Twitter Violate President Trump’s First Amendment Rights?” Experts like Wayne State University law professor Jonathan Weinberg chimed in that, under the First Amendment, a company “gets to choose who it does business with and who it doesn’t.”
Likewise, when questioned about the Board’s decision and its impact on free speech, board member and Stanford Law Professor Michael McConnell dismissed such concerns by insisting that the First Amendment does not apply to Facebook and “no judge in the country would rule” in favor of the former president.”
The First Amendment is not the full or exclusive embodiment of free speech, however. It addresses just one of the dangers to free speech posed by government regulation. Many of us view free speech as a human right. Corporate censorship of social media clearly impacts free speech, and replacing Big Brother with a cadre of Little Brothers actually allows for far greater control of free expression.
This is even more concerning when politicians openly pressure companies to increase censorship. In one hearing last year, Sen. Richard Blumenthal (D-Conn.) actually warned Big Tech CEOs that he and his colleagues were watching to be sure there was no “backsliding or retrenching” from “robust content modification.”
Obviously, these politicians would insist that the Masterpiece Cakeshop case is about discrimination while the Facebook controversy is about disinformation. However, some of us have long viewed all of these controversies as about free speech. Indeed, taking a free speech approach avoids the hypocrisy on both sides.
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.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.