On Free Speech, Part 2: privatizing the public square.
Has anyone else noticed that since 2016, a significant number of liberals and leftists have become Reason magazine reading, free market worshiping, Ayn Rand-loving libertarians? This holds particularly true with the number of people who cheer when some social media corporation censors (the powers that be are pushing the neologism ‘deplatform’ as a euphemism) someone spouting a conservative point of view. When challenged on free speech concerns, these newly libertarian-minded individuals almost to the person will reply that private companies have the right to “control the content” (another polysyllabic euphemism for ‘censor’) on their platforms. Our Randroid interlocutor will then remind us, while wearing a shit-eating grin the size of which is inversely proportional to the degree to which they understand the argument they parrot, that the First Amendment does not protect you from being censored by private interests. When talking to a friend who pulls this argument, you may be asking yourself why is this self-identified liberal/leftist, who once opposed the idea that corporations have individual rights and decried the Citizens United decision, suddenly sounding like Mitt Romney during the 2012 US presidential campaign?
Before we jump in to discussing why so many of our liberal/leftist friends have become defenders of corporate rights, let’s make sure we understand the difference between free speech and the First Amendment of the US Constitution. ‘Free speech’ is the right to speak your mind, state your opinion (as well-informed or ill-informed as it may be), and even to state the facts of a matter without fear of reprisal. The First Amendment protects your right for free speech from interference in the US from government interference. Please burn this into your mind if you haven’t already: free speech and the First Amendment are not the same things.
I have too often heard or read someone complaining about censorship on Facebook or Twitter only to have someone else respond, “but the First Amendment doesn’t apply to private forums.” Whenever I hear this, my mind adds a “derp!” to the end of it. No one said the First Amendment applied to a private forum. The complaint is that various private forums don’t respect free speech by engaging in censorship. Most of the time I cannot figure out whether Derpy McRandroid really does not understand the distinction, or if they are arguing in bad faith.
Regardless, the problem under discussion involves an insidious attack on free speech: speech can remain formally free under the First Amendment, but if you privatize the public square then there will be nowhere to exercise your freedom of speech. You still have it, but you can’t really use it.
A good example of this happened a few years ago in Salt Lake City. In April 1999, Salt Lake City sold part of Main Street and the sidewalks (yes, they sold the actual street) to the LDS (aka Mormon) Church.1 The street was a favored place for protestors to protest against the church in front of the Salt Lake Temple. The city could not prevent people from protesting there (First Amendment), but once the Church owned it they could exclude protestors from their private property. (Note: the city retained an easement for vehicular and pedestrian traffic, but for passage only.)
When this happened, liberals and leftists were incensed that a public government could and would sell a public street to a private entity for the purpose of censoring speech. Ah, the good ole days!
So what happened?
I have a feeling this is another case of the group in power deciding that because the censors will be on their side, to hell with free speech. So long as social media platforms are censoring conservative speech, a good number of vocal liberals and leftists will press their advantage. If the leadership of Facebook and Twitter were conservative and pushing anti-choice (or ‘pro-life’ if you must; give it a name …) or theocratic nonsense these same liberals and leftists would quickly rediscover the virtue of free speech.
If you doubt this, check out this Jonathan Turley post about Whole Foods workers. The leadership of Whole Foods has decided that they would like to keep their stores free of political sloganeering. In a way, who can blame the? Sloganeering may drive customers away who are offended while doing nothing to bring new customers in. But in this case, the complaint is that this ban includes “Black Lives Matters” paraphernalia, including face masks bearing that slogan. Huh? You mean to tell me once it’s their own ox getting gored that our wannabe censors on the left suddenly rediscover the virtues of free speech, even in a private forum like a grocery store? Who would have guessed?
I also think Prof. Turley is correct that if the powers that be at Whole Foods were banning “All Lives Matter” masks, these peoples’ support for free speech would evaporate again.
Don’t forget the companion argument to “there is no free speech in a private forum.” That old chestnut goes “free speech only means there is no prior restraint, not that you are free from the consequences of what you say.”2 Sure. If you think this, I recommend looking up chilling effect. That is, imposing consequences on speech tends to chill that speech. That’s not really freedom of speech. Again, our liberal/leftist friends understood this back during the Bush II years when they (rightly) complained when a woman was fired for having a Kerry bumper sticker on her car during the 2004 election. Now, left wing activists gleefully do the same.
Activists on both the right and the left forget that politics is cyclical. When they are on top and hot to be the censor they forget that they’ll be screeching for their free speech rights when they are on the bottom again.
Having said all of that, the ubiquity of social media forces the question: do we as a society want to allow free speech to be snuffed out in all but the most formal sense as the public square is privatized? It is a tough question to which I do not have an easy answer. But I think that ultimately we will need something like the fairness doctrine for large private forums like Facebook and the now-privatized Main Street in Salt Lake City. (Details like how large is ‘large’ and what is open to the public to be worked out of course!)
The alternative is to live in a capitalist dystopia worse than the one we already have.
More precisely, to the Church-owned corporation that holds the Church’s real estate.
This is sometimes expressed as “Play stupid games, win stupid prizes.”