What First Amendment

 

  Salem Witch Trials (circa 1692/3)

What First Amendment?

Trump-Appointed Federal Justices Gone Rogue

It’s easy to miss all the strands of a right-wing autocratic rope being woven to stifle and choke opponents, effectively imposing minority White evangelical rule as the nation’s new system of governance. The dismantling of the 14th amendment (equal protection, in voting and abortion rights) and the 1st Amendment (keeping government from abridging free speech) includes a full-on assault by a litany of Donald Trump appointees to the federal judiciary. It’s sticky when differing states have differing laws for media messages that cross state lines. That seems also to violate the “commerce clause” of the US Constitution (Article 1, Section 8, Clause 3) giving federal exclusivity, among other things, to interstate legal issues. But as we have seen with increasing frequency, Trump appointments to the federal judiciary are not particularly respectful to their courts’ own precedents… or the Constitution.

Social media – with a now-proven ability seriously to influence elections, spread and “justify” false conspiracy theories and create psychological harm to young minds – has been a contentious battleground. Twitter, Instagram, Facebook (Meta Platform), YouTube, Tik-Tok and a litany of smaller sites have sent their CEOs to testify before Congress, experiencing the wrath of both Democrats (for allowing the spread false and distorting information) and Republicans (for “disproportionately” cutting out their posts and banning many of their most prominent politicians). Such testimony has not, however, produced any meaningful new federal legislation.

It’s a touchy area, since the 1st and 14th Amendments only deal with governmental restrictions against the enumerated liberties and do not directly impact private entities. While courts have elevated certain open-to-the-public gathering places as “quasi-governmental entities” subject to the same Constitutional limitations, we are watching the US Supreme Court back-pedal on exactly what those individual liberties might be.

The recent failure of the Supreme Court to negate Texas’ use of private citizens (literally vigilantes) to enforce right-wing laws – where the state relies on civil lawsuits for damages filed by private citizens against abortion “offenders” – the rejection of the salient enforcement points of the Voting Rights Act and the leaked Alito draft opinion purportedly reversing Roe v Wade, suggest that individual rights we had assumed were protected under the Constitution are up for grabs. Red states have gone into legislative overdrive of statutory excess, curtailing those assumed individual liberties across the board. They believe that the Trump-appointed right-wing majority is more than prepared to rewrite the Constitution along ultra-conservative party lines.

We have watched as red states have moved to punish corporations doing business within their jurisdictions for supporting views that run contrary to their right-wing laws. With leadership from Florida’s Governor Ron DeSantis and Texas’ Governor Gregg Abbott, red states are seeing exactly how far courts will go to allow them to curtail those individual liberties. We’ve witnessed this trend with gun laws, gerrymandering and voter suppression, abortion rights, critical race/gender censorship and now… out-and-out control of social media. The latest example: Texas passed a law requiring social media companies reaching into that state to post obviously false and sometimes inciting materials without censorship, banning consistent violators or even linking such false posts to explanations of the falsity.

Here’s background from the Free Speech Project, in an article written by Mark Joseph Stern and posted on May 12th on Slate.com: “Texas Republicans passed their internet censorship bill, known as H.B. 20, in the fall of 2021. Its sponsors said that the legislation was necessary to prevent ‘West Coast oligarchs’ from silencing ;conservative viewpoints and ideas.’ (Their theory that social media companies discriminate against conservative speech has no evident basis in reality.) The bill applies to social media companies with “more than 50 million active users” in the U.S. each month, like Twitter, YouTube, and Meta, that operate in Texas. (Republicans rejected a proposal that would’ve broadened its application to smaller conservative platforms like Parler and Gab.) It states that these companies may not ‘censor’ a user’s expression on the basis of their ‘viewpoint,’ whether that ‘viewpoint’ is expressed on the company’s platform or somewhere else. If a platform removes a user’s content, it must provide them with notice and an opportunity to appeal. Alleged victims of ‘viewpoint discrimination’ can also file suit against social media companies, as can the Texas attorney general.

“H.B. 20 doesn’t stop there. The law also bars social media companies from labeling posts on their own websites—with, for instance, a warning that they contain violence, vulgarity, or disinformation. It obligates companies to turn over a massive amount of information to the state about their algorithms, curation, and account suspension. And one baffling provision sharply restricts email service providers’ ability to block spam, allowing users to collect $25,000 for each day that their provider impedes ‘the transmission of an unsolicited or commercial electronic mail message.’…

“As a rule, they could suppress only illegal incitement or other ‘unlawful’ speech. But just a small subset of hateful or violent expression falls outside the scope of the First Amendment [such as a solicitation to commit a murder]: Even speech meant to promote illegal conduct, including some forms of intimidation, receives constitutional protection. So H.B. 20 would forbid platforms from removing, demoting, or condemning all but the most extreme, graphic, and threatening speech. Even then, each instance of content moderation might subject companies to a lawsuit, incentivizing a totally hands-off approach.

“Other aspects of the law all but compel companies to cease editorial control over their own products. The intrusive disclosure requirements are almost comically impractical: They oblige companies to give Texas heaps of information about their algorithms, curation, and search functions, as well as a “biannual transparency report” with information about every single “action” taken against “content.’…

“It would be impossible for any target of H.B. 20 to comply with these standards. Platforms like Facebook use automated editorial tools to remove billions of posts and comments every year. They lack the resources, by orders to magnitude, to review and resolve each appeal, especially not within the 14-day limit that H.B. 20 provides. The only solution would be to stop monitoring content. Yet the law forces companies to assess complaints of “illegal content” within 48 hours, so they cannot adopt a true laissez-faire policy either.

“The only way out of this mess, then, would be for social media companies to cease all operations in Texas. But H.B. 20 orders them to continue providing their services in Texas. So there is truly no escape—except the courts.” A federal district court in Texas did not buy the state AG’s argument that this Texas statute did not abridge free speech, rather it made sure speech could not be “abridged” by these private corporations, and enjoined the law as violative of the Constitution.

On May 11th, without a written opinion explaining their decision, the U.S. Court of Appeals for the Fifth Circuit (which covers Texas, Louisiana and Mississippi) – where 12 justices are GOP appointees (6 by Donald Trump) and 5 are from Democratic administrations – reversed the trial court and reinstated the law… in full. Is the next step the Supreme Court shadow docket? Will it survive? Time will tell. But the law stands, will social media companies be able to survive at all? 

I’m Peter Dekom, and it sad to watch the serial erosion of the Constitution by quasi-legislative federal judicial activists, often embraced by the U.S. Supreme Court itself.