A Contrarian Clarification of "Free Speech"

A social media company has the right to decline publishing my opinion, but the government's ability to restrict what the social media company publishes is restricted by the First Amendment.

We all know what "free speech" means: it's our right to say whatever we want, whenever we want, wherever we want, as long as we're not libeling someone. Well, actually, no, that's not what "free speech" means. Here's the First Amendment to the Constitution of the United States:

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.

For an overview of the immense body of jurisprudence regarding the limits of "free speech," here's a good place to start: First Amendment Fundamental Freedoms Analysis and Interpretation of the U.S. Constitution.

In essence, the first amendment prohibits the federal government from "abridging the freedom of speech, or of the press," in other words, censorship. The Founders were seeking to limit the powers of the state to restrict pushback from the citizenry against state policies or decisions.

But this doesn't mean "everything is protected as 'free speech.'" For example, a drunk in a bar who shouts, "You're worthless, you suck!" at other patrons is not protected by the First Amendment.

"In Chaplinsky v. New Hampshire, the Supreme Court unanimously sustained a conviction under a state law proscribing any 'offensive, derisive or annoying word addressed to any person in a public place'... 'the use in a public place of words likely to cause a breach of the peace,' words 'by their very utterance, inflict injury or tend to incite an immediate breach of the peace. Accordingly, such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'"

Yet by some strange bewitchment, the "right" to shout "You're worthless, you suck!" online is now considered "protected" as "free speech." As the Court clearly stated, "free speech" is intended to protect an exposition of ideas as a step to truth, not content-free abuse.

The First Amendment does not obligate privately owned media to provide a forum for everyone to shout "You're worthless, you suck!" If the drunk wanders from the bar to the Heritage Foundation and demands they publish his "opinion," the Foundation is under no obligation to comply.

The newspaper is not obligated to print the drunk's "letter to the editor," nor is the radio station or TV network obligated to provide a forum for his "opinion."

On occasion a reader expresses discontent that I don't have a "comments forum" on my website, on the presumption that everyone paying to host a website is somehow obligated to also pay the expenses so everyone else can use their privately funded site as a public forum for their opinions.

What the First Amendment says is that government cannot restrict anyone from hosting a website, though what they post publicly is subject to Chaplinsky v. New Hampshire. Other cases reflect the Court's view that the issue with "free speech" is government actions that restrict free speech, not the right of privately owned enterprises to choose what they publish / post publicly.

My response to those expecting that a privately funded "forum" for their "opinion" is a "right": pay for your own server / website and then you can post whatever opinions you wish to. That's the limit of free speech: you're free to carry a sign in public places (with certain restrictions), publish your own newspaper, start your own website or media platform, or give speeches from soapboxes, but nothing obligates a media corporation to publish your "opinion" or provide an unrestricted forum for everyone's opinions.

In other words, a social media company has the right to decline publishing my opinion, but the government's ability to restrict what the social media company publishes is restricted by the First Amendment.

What obscures this distinction is the Big Tech platform's profit-driven fear of alienating the users they're trying to addict by clarifying what their "community standards" actually mean. It would be refreshing if social media / search platforms stated what they consider acceptable and unacceptable in clear, simple terms.

For example, "the owners and management of this site hold values generally described as (progressive, conservative, libertarian, etc.) and we have the right to decline to publish opinion and content that conflicts with our values." At least the political reality would be in plain sight rather than being cloaked by phony claims of neutrality.

It would be refreshing if a Big Tech corporation stated, "We retain the right to judge whether a comment or post offers an exposition of ideas as a step to truth or is content-free opinion of slight social value" instead of pandering to the claim that they're pursuing "free speech" rather than "free enterprise," an enterprise enriched by shouting "You're worthless, you suck!" as often as possible, to spur "engagement."

What the First Amendment clearly restricts is government censorship by proxy, that is, government "requesting" social media corporations limit what is posted based on standards selected not by the owners but by the government. I often complain about being shadow-banned, but what I'm complaining about is not the right of these platforms to refuse to publish my content; that is their right, just as it's my right to refuse to provide a public forum for everyone else to post their opinion.

What I object to is the mealy-mouthed, cowardly way the media giants hide their guidelines, out of fear of reducing their precious profits. But the First Amendment doesn't require media corporations to state their guidelines. Newspapers have the right to decline to publish opinions submitted by readers that the editors disagree with or don't want to promote, and there's no obligation for them to explain every refusal.

If we disagree with the media company's decision, then our "right to free speech" boils down to peaceful public protests or starting our own newspaper / website / platform / radio station / channel.

The concentration of media is another issue: there are negative social consequences of monopolies and cartels dominating media platforms. But that's a topic for a future essay.

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