Conservative Attacks on 'Big Tech' Are Turning the Constitution on Its Head
No, states can't use the 10th Amendment to overturn the First Amendment.
Throughout my life, conservatives have believed the U.S. Constitution means what its authors intended. While it can sometimes be challenging to apply the document's verbiage to modern times, conservatives know that when the founders wrote, "Congress shall make no law" they meant that, "Congress shall make no law." Easy peasy, as the saying goes.
By contrast, liberals have often championed a "living and breathing" Constitution—one that evolves with the times. They don't mean proper change via amendment, but through "enlightened" court interpretations. Like shamans, liberal justices don't obsess over the founders' intentions, but on truths found in penumbras. Go figure, but their divinations usually conform to their own biases.
In a bizarre twist, conservatives are now sounding like liberal jurists rather than traditionalists on some key constitutional questions. Let's take the First Amendment, which the founders viewed with particular significance given that they placed it, well, first in the Bill of Rights. These days, conservatives are busy reinterpreting its meaning and have been quite creative with their new interpretations and divination.
For instance, Florida's Republican Gov. Ron DeSantis recently signed a law that applies governmental moderating standards to social-media companies. It fines tech companies if they suspend political candidates prior to elections, lets the state attorney general and even private citizens sue these companies if they believe they've been treated unfairly, and gives online publishers a list of enforceable editorial conditions.
That's obviously a government restriction on speech given that the government is mandating that private publishers behave in a certain way. Yet writing in American Spectator, the Heartland Institute's S.T. Karnick has discovered such a novel method of interpreting that law that he would have made former Justice Thurgood Marshall, the late justice who was known for his creative constitutional gyrations, quite proud.
"Defenders of Big Tech routinely argue that these companies have a right to do whatever they want because they are not government entities. That is false," Karnick wrote. "The fact that they are in the private sector does not change the definition of the word" censorship. If we erase the distinction between private censorship (which we all do) and government censorship, however, we essentially erase the First Amendment.
The Constitution forbids Congress specifically from regulating private speech, but then the 14th Amendment applied most of the Bill of Rights to the states and their governments. Karnick also argues that the 10th Amendment gives Florida the right to exercise its authority on this basic-rights issue, which is a rather odd position for a conservative.
If the 10th Amendment, which vests many powers in the states rather than the federal government, can be justified to obliterate constitutionally protected rights, then California can ban firearm ownership, despite what the Second Amendment says. If you don't think rights should apply to tech companies whose decisions anger you, then they might not apply when your decisions anger others.
The "Fairness Doctrine," which mandated equal time for political views on "public" airwaves, offers a template for what conservatives now are suggesting. Its elimination allowed for the proliferation of conservative talk radio, given that such imbalanced programming previously was verboten. What would happen if the Biden administration could force broadcast outlets to balance the views of Mark Levin and Tucker Carlson? Take a guess.
Many of these conservatives are like liberals in another important way. They seek to control private-sector companies because they don't like how they operate. For instance, David Marcus complained in a Fox News column last week about the media's Johnny-come-lately coverage of the theory that the coronavirus emerged from a Chinese laboratory.
Yes, the media mostly treated that story as a conspiracy when Donald Trump had postulated it—but are treating it seriously now that Trump is gone. So what? Publications can print whatever they choose, some do a lousy job and all of them are biased. My conclusion is the media should learn from its mistakes, but Marcus' take is more draconian.
"Nobody is checking the fact checkers, and it is time that changed," he wrote. "It's time for government to regulate the fact checking industry." He named Politifact and Associated Press as examples of organizations that need government oversight as they advise social media—even though they are journalism organizations.
Marcus claims the First Amendment forbids regulation of "in-house" fact checkers, but he carves out the exception for independent checkers—something he appears to have pulled from thin air just like the living-and-breathing jurists. "This may seem antithetical to traditional conservative values of small government," he says, but we ought not be "slaves to orthodoxy."
Perhaps the Biden administration should appoint a regulator to fact-check Marcus' writing for the next few weeks—and then he can report on the experience. Thanks to First Amendment "orthodoxy" that won't happen, but it's time for conservatives to grow a thicker skin and stop attacking the constitutional protections all of us enjoy.
This column was first published in The Orange County Register.