The First (Terms of Service) Amendment
The First Amendment must catch up with the 21st century. What we say on Twitter and elsewhere online is too important to be governed by a Terms of Service agreement.
I recently wrote about how the Ohio State University is preventing white supremacist Richard Spencer from speaking on campus. Despite falling under the First Amendment, Ohio State is looking for a legal loophole to block speech it doesn’t agree with.
The semi-comforting news is that Ohio State’s face slap to the First Amendment is subject to legal challenge. Not so in the cyberspace-based public square of the 21st century. What should be the modern arena of diverse ideas is instead controlled by corporations and their self-written Terms of Service. Hiding behind the bushes of private ownership, the quasi-public forums on Twitter, Facebook, Google, and their predecessors and successors skirt the First Amendment to control what people say, read, and by extension, think. They are the censors the Founding Fathers feared. It is hard to imagine a more significant threat to the free exchange of ideas.
It is time to expand the First Amendment to quasi-public institutions.
The scope of the First Amendment has regularly expanded. In the earliest days of the Republic the Bill of Rights applied only to the federal, and not any state or local governments. It wasn’t until the post-Civil War incorporation doctrine, followed by court cases well into the 20th century, that those restraints on government applied equally to the states. In its own founding days Ohio State could have easily banned a speaker for his beliefs.
Actually, Ohio State might have been able to ban a speaker it found offensive until even more recently. It wasn’t until a 1995 case that the Supreme Court held a university’s choices on funding student publications fell under the First Amendment’s obligation not to discriminate against particular viewpoints. Other expansions of the First Amendment took place in the 1950s, when the Supreme Court extended protection to non-traditional “political” speech, including nudity and advertising.
The First Amendment grows with the times, and needs to do so again to take in what Justice Anthony Kennedy called the “vast democratic forums of the internet in general, and social media in particular.”
The problem is that those forums today enjoy the freedom to suppress what once were inalienable rights.
When you use various web sites, you agree to a dense set of conditions, Terms of Service, along with the understanding that Twitter (we’ll use them as shorthand for the range of sites and apps) can interpret things as they wish. So while the Supreme Court continues to hold the line against banning “hate speech,” Twitter is free to apply any standard wishes, along any political or ideological lines it wishes. Twitter may ban speech acting as an arm of the government, skirting the First Amendment because it can.
That appears to have been what happened with Twitter’s decision to ban advertising from Russian media outlets RT and Sputnik. Both have been accused via a hazy intelligence community assessment of influencing the 2016 presidential election. While the federal government is stuck with that creaky old First Amendment preventing it from chasing RT and Sputnik back to Moscow, Twitter can — literally with a Tweet — silence them. Twitter quickly followed the Russian action with a decision to ban whatever it thinks are “violent groups and hateful imagery and hate symbols.” In the same week Twitter suspended the account of conservative Roger Stone. No explanation was given, though the suspension appears to be related to Stone’s angry Tweets directed at CNN.
My own Twitter suspension occurred in the process of defending myself against several antifa people who conflated my defense of free speech in the broadest terms with what they believed was my personal support for nazi hatred. Their threats to “punch nazis” lead me to respond. My response was deemed by Twitter incitement to violence (though it would never meet the actual definition of that term the Supreme Court established) and I got the boot. When suspended, Twitter still allows you to read your timeline, so I could see attacks continue until the antifa people tired of it all. I could not block them or respond in any way. It felt a lot like five big guys holding me down while a bully whacked away.
Google has quietly implemented censorship in the most well-intentioned way possible: to stop child predators. The internet giant tweaked its English-language search results to block sites it believes link to child pornography. “We will soon roll out these changes in more than 150 languages, so the impact will be truly global,” the company claims.
While no one can argue against stopping child predators, those same tools can be used in other ways, known as the search engine manipulation effect. Generally, the higher an item appears on a list of search results, the more users will click on it. Research shows putting links for one candidate above another in a rigged search can increase the number of undecided voters who chose one candidate by 12% or more.
Burying a link can have a similar effect. Google highlighting an OpEd that argues one way to the query “What is Trump’s Russia policy?” while leaving an opposing opinion out of the search results is a critical free speech issue of our time. A current Google search for “greatest president of the 20th century,” for example, highlights a brisk historical debate over Ronald Reagan versus Franklin Roosevelt, and brings up over 300,000 sites. What if it yielded only one? America would never accept government issuing a list of approved books for dead tree libraries few use anymore, but blithely accepts the same from the most-used research tool in human history.
Technology has changed the nature of censorship so that free speech in 2017 is not as much about finding a place to speak, but about finding an audience. Censorship in the 21st century targets speakers (example: Twitter) and listeners (Google.) There will soon be no fear that anyone will lock up dissident thinkers in some old-timey prison to silence them; impose a new Terms of Service and they are effectively dead.
The arguments that Twitter and Google are private companies, that no one forces you to use their services, and in fact you are free to switch to MySpace and Bing, are tired attempts to justify end runs around the First Amendment. Platforms like Twitter are the public squares of the 21st century (seven of 10 American adults used a social media site in 2016), and should be governed by the same principles, or the First Amendment will become largely irrelevant.
Pretending a corporation with the global reach to influence elections is just another company is to pretend the role of unfettered debate in a free society is outdated. Absent a court decision that places quasi-public forums under the First Amendment, we face a future that will splinter debate and discussion into a myriad of ideological-based platforms such that no one will be listening to anyone they do not already support. It will be a future where Twitter and Ohio State protect students from the words of Richard Spencer at the expense of teaching them how to challenge those words.
