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| Constitution of the United States - U.S. National Archives |
Last week, Russia's communications regulation agency announced that it would block websites that refer to the war in Ukraine as an "attack, invasion, or declaration of war." They are also targeting publications that mention the shelling of Ukrainian cities or civilian casualties. This is not surprising. Authoritarian regimes always tightly control the media to prevent their citizens from learning the truth.
Freedom of the speech is one of the most important protections of a democratic society which is why it comes first in the United States Bill of rights. However, since the beginning of last year, there has been significant whining by people who should know better about violations of their right to free speech. Even people who have sworn to uphold the U.S. Constitution have apparently not actually read it. I believe it is helpful to clarify a few points about the First Amendment.
Limits Only Governmental Action
The text of the First Amendment reads: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This wording clearly limits only the power of the US Congress to limit free expression. However, subsequent Supreme Court cases, including Gitlow vs. New York in 1925, have incorporated the the language of the Fourteenth Amendment ("No state shall...deprive and person of life, liberty or property without due process of law") to apply the First Amendment restrictions to governments at the state and local levels.
Newspaper, book publishers, websites and social media platforms are not government agencies so they are not limited by the first amendment. When Twitter, Facebook and other site removed the accounts of the former President for violating their content rules, they were not violating his free speech rights. In fact, they were exercising their own First Amendment right to edit their content responsibly.
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| Josh Hawley encouraging the protesters about to attack the Capital |
Similarly, when Simon & Schuster decided not to publish Missouri Senator Josh Hawley's The Tyranny of Big Tech, they were not infringing his rights. They were simply making their free choice not to be associated with a repugnant individual. Hawley could and did find a different publisher with lower standards.
Inciting or Producing Imminent Lawless Action
Others trying to misinterpret the U.S. Constitution are the members of the Oath Keepers and Proud Boys organizations that planned the January 6th, 2021 insurrection at the U.S. Capital. Supporters of these groups have claimed that what happened in Washington that day was "legitimate political discourse" protected by the First Amendment. The Supreme Court is unlikely to agree.
In Brandenburg vs. Ohio, in 1969, the Supreme Court ruled that "A state may not forbid speech advocating the use of force or unlawful conduct unless this advocacy is directed to inciting or producing imminent lawless action and likely to incite or produce such action." Since the encouragement of the Proud Boys and Oath Keepers, and probably Trump and Hawley, produced imminent lawless action, it falls clearly outside of the First Amendment protections.
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