President Trump’s lawsuit against Facebook and Twitter for censoring and removing him from their platform highlights the necessity to force the media companies to allow free speech. But it would be better if Congress acted instead of asking the courts to create a new right.
Twitter and Facebook will argue that the First Amendment applies only to governmental units, and not private companies, which is the current law.
Many believe that we have a right of free speech, but the First Amendment protects our right of free speech only from interference by the federal, state, and local governments. We have no such protection against interference by private companies such You Tube, Facebook, Twitter, and private employers.
“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.”
The Supreme Court has held that the First Amendment also applies to state and local government units such cities, school districts and others, under the 14th Amendment which incorporates the First Amendment and others in the Bill of Rights.
James Madison did not believe that we needed a Bill of Rights because the federal government was to be a government of limited powers. Thomas Jefferson and others, along with states that demanded further limitation on the powers of the federal government, persuaded Madison on a Bill of Rights.
The next step to protect free speech is to require private companies and private employers to not discriminate against those who exercise their right of free speech.
Government employees have the protection of the First Amendment, but not employees of private employers. If the employer is unionized, then the collective bargaining agreement (CBA) protects an employee from discipline because the CBA requires just or proper cause to discipline.
Worse is the censorship on social media such as Facebook, Twitter, and others where these companies “moderate” posts made by its users. This has resulted in the removal of political statements, usually of conservative statements.
Congress can amend Title VII of the 1964 Civil Rights Act that prohibits discrimination by employers based on race, religion, national origin, sex, or color, to add discrimination based on political and other views.
Title II, which deals with public accommodations such as hotels and restaurants. can be amended to include discrimination by social media companies based on political statements.
The “public accommodations” should include social media because social media has become the marketplace of ideas, but it is controlled by several large powerful companies, such as Google, Twitter, and Facebook that have power over the content.
Congress can pass a law to deal specifically with social media by requiring social media to allow unrestricted comments and posting. Let the people decide what they want to read.
This would extend the First Amendment protections to everyone.
Many will attack this as a further expansion of the powers of the federal government. But the powers of the giant social media companies to dominate the culture and the marketplace for the exchange of ideas is enormous. Private citizens have no power to counteract.
Facebook, Twitter, You Tube, and the rest are like public utilities because they use public airwaves and are monopolies. The electric, phone, and gas companies cannot shut you off because of your political views but Twitter and Facebook do so regularly. They are the public square for the exchange of information and ideas.
Information should be put before the public for the public to decide.
The marketplace for ideas should be open to all with no restrictions for news, articles, and views, except for the current restrictions on the First Amendment rights for violence and pornography. Further, there are state laws that allow suits for defamation to allow redress for defamatory statements.
This issue should be debated in Congress to provide protection for employees in the private sector and for all of us with social media.
As a libertarian- conservative I am opposed in general to further government regulation, but who else can force Google, Facebook, and Twitter to allow us to express all opinions, views, and news?
It is time to extend the protections of the First Amendment to all Americans.
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