Social media, as a marketplace of ideas, must never discriminate against disfavored members of the public

Yesterday, The Wall Street Journal published an op-ed by Donald J. Trump explaining "Why I'm Suing Big Tech," and The New York Times published a guest essay (the term op-ed has become verboten at the Times) by Kara Swisher titled "Donald Trump Just Can't Quit Facebook and Twitter"?  The Swisher column included this internal summary: "The former leader's new lawsuit shows he doesn't understand free speech."

The Swisher rebuttal is not convincing.

First, however, in furtherance of accurate understanding of what "free speech" is all about, here is an excerpt from Justice William Brennan's opinion in New York Times v. Sullivan, a libel law case that provided an "actual malice" test for libel actions, a ruling that, lately, has come under criticism for that test but not for its review of what free speech in the United States is all about:


The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' Roth v. United States, 354 U.S. 476484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498. 'The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.' Stromberg v. California, 283 U.S. 359369, 51 S.Ct. 532, 536, 75 L.Ed. 1117. '(I)t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions,' Bridges v. California, 314 U.S. 252270, 62 S.Ct. 190, 197, 86 L.Ed. 192, and this opportunity is to be afforded for 'vigorous advocacy' no less than 'abstract discussion.' N.A.A.C.P. v. Button, 371 U.S. 415429, 83 S.Ct. 328, 9 L.Ed.2d 405. The First Amendment, said Judge Learned Hand, 'presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.' United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y.1943). Mr. Justice Brandeis, in his concurring opinion in Whitney v. California, 274 U.S. 357375 376, 47 S.Ct. 641, 648, 71 L.Ed. 1095, gave the principle its classic formulation:


'Those who won our independence believed * * * that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.'


Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. See Terminiello v. Chicago, 337 U.S. 1....

Among other observations, note Justice Brennan's recognition of a "prized American privilege to speak one's mind, although not always with perfect good taste[.]"  Jack Dorsey at Twitter and Mark Zuckerberg at Facebook have rejected that "privilege," demanding that its customers must behave in accordance with the Dorsey and Zuckerberg views on "perfect good taste."  See Justice Brennan's reference to Judge Learned Hand, who was confident that "right conclusions" would be the result of diversity of opinion, not authoritarian diktat from the likes of a Dorsey or Zuckerberg.  And consider, please, Justice Brennan's recognition of "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."  There should be no doubt to the unbiased observer that the Big Tech "Iron Curtain" excluding former president Trump from access to its social media contravenes America's commitment to free speech.

Yet Kara Swisher asserts that free speech is protected, under the First Amendment, only from interference from Congress, not from private entities.  To reach this unpersuasive conclusion, she first had to accuse then-president Trump falsely of "insurrection" at the Capitol on January 6, 2021.  But she ignored what social media are, or should be, all about — a marketplace of ideas for the public.  That is to say, arguably, the matter of public accommodation is in play here, and would a court hold that while the notion of public accommodation does not allow of discrimination in booking a hotel room, or making a reservation at a restaurant, it is perfectly permissible for the likes of a Dorsey or Zuckerberg to discriminate against people they loathe, barring them from access to the social — and public — media they control?

In an unintended giveaway, Ms. Swisher remarked, "But feelings aren't facts."  Yet because she likely loathes Donald J. Trump as much as Dorsey and Zuckerberg — and The New York Times, of course — she would allow her feelings  about Mr. Trump to trample on our tradition of free speech — and accommodation to public venues.

Here now is the part of Mr. Trump's argument that fits in with a public accommodation context against Big Tech censorship of — shall we say — unwoke views:

Social media has become as central to free speech as town meeting halls, newspapers, and television networks were in prior generations, The internet is the new public square

Citizen Trump concluded his Journal op-ed:

Through [the Big Tech lawsuits], I intend to restore free speech for all Americans — Democrats, Republicans and independents. I will never stop fighting to defend the constitutional right and sacred liberties of the American people.

If there was hyperbole in Mr. Trump's concluding words, it was the suggestion that Democrats are still interested in "free speech."  Swisher's "guest essay," after all, declared, of Big Tech's censorship practices against what they regard as disagreeable opinion, "Yes, they can, Mr. Trump[.]"

What better proof that The New York Times has effectively hurled a spear in the direction of the heart of Justice Brennan's opinion in New York Times v. Sullivan?  Should that spear find its mark, we shall indeed have abandoned our legacy of liberty for totalitarianism.

In short, the court that rules on Donald J. Trump's lawsuit against Big Tech should hold that the principle of access to public accommodation extends to social media, which must not turn the First Amendment into an American Iron Curtain.

In case anyone is wondering, the ACLU responded to the Big Tech ban on Citizen Trump with a mealy-mouthed statement, of course denouncing him, but also expressing a bit of difficulty with the ban.  Here is the conclusory paragraph from the ACLU statement:

Again, Facebook is a private entity not governed by the First Amendment. And President Trump's actions in the wake of the Nov. 4  election  [Note: the election took place November 3, 2020 — the shenanigans probably occurred on November 4] were deplorable. But the broader issue here is how an extraordinarily powerful private corporation regulates access to one of the country's most important forums for discussion and debate. We believe Facebook can and must do more to ensure that it operates its platform consistent with principles of free expression and fair process for all. We'll be paying close attention to see how Facebook's approach evolves, and whether the Oversight Board plays a meaningful role in protecting political speech and free expression rights online.

How this illiberal cabal committed to promoting anti-Trump propaganda would howl if Zuckerberg and Dorsey ever banned a leftist totalitarian or an ayatollah, but then, this dreadful duo wouldn't.

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