Say what you want about the First Amendment

10/21/2020

The question of who, if anyone, owns the Constitution is yet another fault line in our current national fragmentation. Politicians and cable news outlets routinely question the constitutionality of every posture, provocation and decision, even in situations where the provisions of the Constitution are irrelevant. While most Americans have never read the document, we’ve been conditioned to respond to it in ways that reflect our political and social biases. I can’t help but notice that voices on the right have more tightly wrapped themselves inside the idea of the Constitution, though not necessarily its true meaning. They have appointed themselves arbiters of what is or is not constitutional, attempting to own the document in a way that leaves little room for the rest of us. Recently in Michigan, a ragtag army of 13 constitutional vigilantes planned to kidnap the governor for what they saw as violating their constitutional rights in mandating restrictions to help slow the spread of the coronavirus. They proved that no good deed goes unpunished. 

It’s important to note that the First Amendment only protects citizens from restrictions placed upon us by the government. Because private entities are allowed to control speech, the First Amendment is not carte blanche to say what you want, where you want. In the world of social media, companies like Facebook and Twitter have no legal obligation to provide a forum for free speech, although gauging by the amount of garbage regularly posted therein, I would argue that they’re going a good job of providing it. Just as a private baker in Lakewood, Colo. doesn’t have to bake a wedding cake for a gay couple if it clashes with his religious views, a social media company can remove messages that contradict its corporate principles. 

My own experience at the intersection of the First Amendment and social media occurred at the right-wing Breitbart News Network’s website. The Breitbart community, an active collection of conservatives, alt-right mudslingers and conspiracy theorists, coalesces daily around a dynamic comment string that scrolls below each news article. Hundreds, if not thousands, of comments are logged on subjects that veer far and wide from the original topic. Breitbart users profess a level of patriotism and a commitment to the First Amendment that is admirable if only it were true. They, along with President Trump, routinely complain about other social media platforms, insisting that their right-wing voices are being silenced. Let’s be clear. This is another conspiracy theory and, even if it were true, it’s the prerogative of any private company to censor unwanted content. 

I’m proof of that. Three times I set up a user profile at Breitbart with the intent of sharing my contrasting point of view with the community. And three times I was banned. My opinions were regularly attacked with an anger and hostility that was impressive but not unexpected when you’re swimming upstream in a right-wing echo chamber. And to be honest, I did bait the audience, often encouraging users to post their best Holocaust denial. But I never used obscenities and I never advocated or threatened violence. I can’t say the same for the people who responded to me. 

I accepted the punishment each time, understanding that Breitbart is a private entity and can shape the culture of its web property as it sees fit. What I can’t accept is the hypocrisy. To be suppressed by Breitbart, a community that consistently derides social media companies for denying them their First Amendment rights while simultaneously censoring my liberal point of view, is a double standard that only a conspiracy theorist would miss. 

But don’t worry, President Trump has a solution for my problem. His administration has recently petitioned the Department of Commerce to reinterpret Section 230 of the 1996 Communications Decency Act. Section 230 protects technology companies and their platforms from legal liability for the third-party content that people post. It also includes a good Samaritan clause that encourages technology companies to remove objectionable content and protects them from lawsuits for doing that. From comments on mommy blogs to one-star ratings on restaurant reviews sites, Section 230 and its protections have allowed the internet to boom and become the freewheeling hub of social interaction we’ve come to rely on. 

Trump’s petition, packaged in the guise of free speech, is to strike down the part of Section 230 that provides those important legal protections to technology companies when they flag, fact check or remove the bile and animus that he and his supporters spew into public discourse each week. In this, the right is conveniently ignoring what it professes to hate: the use of the power of government to coerce private companies, in this case by threat of litigation, to do something that runs counter to their principles. And that, you can argue, encroaches on First Amendment rights. 

If Section 230 is reinterpreted, the result won’t be kinder, gentler online conversations. Instead, we’ll be chest deep in even more of the lies and vitriol that we’re already wading through. I wonder what the Breitbart community thinks about all this and I’d post a comment to ask but, unfortunately, I’m still banned.

 

Amos Klausner lives in San Geronimo and is a local school board trustee.