Facebook, and Freedom Of Speech

“When our founding fathers gave us freedom of speech in the 1st Amendment, it meant all speech, whether you like it or not!”  -R.H.

No complex question has a simple answer.

Generally, I agree:  If you say “I believe…” and follow that by a statement, no matter how offensive that might be, you’re protected under the law, and because of certain inalienable rights — to an extent.

On the other hand, you can’t necessarily do so on my private property — or rather, if you do, I can evict you.  And there are parts of upper Manhattan where I wouldn’t advise the KKK assemble…  Actually, strike that: I would advise exactly that, and I’d film it all.  I’m not a big fan of the Klan, or of the Westboro Baptist Church, or of Illinois Nazis.  Let ’em march in Harlem, and we’ll see how far they get.

But I digress:  I was talking about private property.  See, there’s reasons I can evict you, or set up a swear jar, or anything I want in my own place.  And the First Amendment protects you only just so much.  Let’s break down that quote I led with:

  1. The Founding Fathers didn’t give this to us. Freedom of expression, in whatever form, is one of the many natural rights that all humanity deserves. It exists until a tyrant steals it. This is important, because:
  2. If there were no provision in the Constitution protecting this fundamental right explicitly, it was feared that a sufficiently revolutionary Congress might take it away. The lesson was going on in France right then, and it involved a Guillotine; twenty thousand people were beheaded for speaking against the Revolution. This is the reason that it’s lumped in with assembly for political protests and demands for redress.  It’s not because only political speech is protected, but instead because it was feared that political speech might be made into an exception.
  3. However, the Amendment is self-limiting, as are they all. It restricts Congress from making laws; by extension, this also keeps states from doing it (Tenth Amendment). But where the right does not already exist, the Amendment doesn’t extend it.
  4. All rights exist only until they interfere with the rights of another, or with the rights of a society (that’s the Ninth Amendment). Likewise, there’s a hierarchy; my right to speak never transcends the right of another to live — the “fire in a theater” argument. These restrictions exist and are codified under the common law, and Article III gives jurisdiction over such questions to the courts.
  5. Rights can’t be restricted based on someone liking them; mere offense is not sufficient. There do exist some forms of speech that can be legally construed as assault. In Colonial times these would mainly be those forms answerable by a challenge to a duel; today, we don’t duel, and our freedoms are broader. Nevertheless, we can be restricted by public safety, by national security, and by breaches of the rights of others.
  6. So if I own a place, and you say something I don’t like, my right to privacy in my own place limits your right to speak — the “castle doctrine”, which is tacitly affirmed in the Third and Fourth Amendments (and when was the last time you heard someone make a Third Amendment argument?)

Facebook, Instagram, and Twitter and other companies own places, virtual though they may be.  They can toss people out if they like; as corporate entities, they have that right the same as people do.  Even were the effective personhood of a corporation to be challenged, collective entities have the collective rights of the owners, and the argument still applies.

So yes, Louis Farrakhan and Milo Yiannopoulos and others can be kicked off social media platforms pretty much at will, and the First Amendment only protects them insofar as those platforms are public space.  Which, at present, they are not.

Capisce?


“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.”

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