First Amendment

Government is Still the Biggest Threat to Free Speech

When Amazon won't sell your book, you can head to Barnes & Noble. When government cancels your expression, there's nowhere left to go.


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Almost a year to the day that Louisville police officers killed Breonna Taylor during a no-knock raid, the Kentucky Senate passed a bill which makes it a crime to insult and taunt cops. If S.B. 211 becomes law, you could get up to three months in jail and a $250 fine if you flip off the fuzz in a way "that would have a direct tendency to provoke a violent response from the perspective of a reasonable and prudent person."

It's just one example of a slew of proposed new laws that are chilling free speech. While freethinkers are rightly worried that private online platforms such as Amazon, Twitter, and Facebook are increasingly—and often arbitrarily—cracking down on speech for political reasons, the much graver threat comes from governments at all levels seeking to compel or ban speech.

In Texas, conservative Republicans want to stop social media platforms from running their businesses the way they see fit. A bill poised to pass the state Senate, S.B. 12, "would create a state law prohibiting business censorship, defined as actions that block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression." This law is backed by Republican Gov. Greg Abbott, who says, without citing actual evidence, that conservative speakers are systematically silenced. "Pretty soon," he brags, such supposed censorship is "going to be against the law in the state of Texas." 

Back in the pre-internet days, you could count on right-wingers to scream about the need to regulate sex and drugs on TV but these days, they seem to want social media companies to do no moderating of content. So maybe that's progress.

At the same time, liberal Democrats, who themselves used to scream about violent video games, are pushing for more regulation of speech they don't like. In Colorado, a proposed law would create a "digital communications commission" that would investigate platforms to make sure they don't allow "hate speech," "undermine election integrity," or "disseminate intentional disinformation, conspiracy theories, or fake news"—all exceptionally vague terms that aren't even defined in the legislation. The commission would have the ability to order changes in the way platforms operate.

At the national level, two congressional Democrats—Rep. Anna Eshoo (D–Calif.) and Rep. Jerry McNerney (D–Calif.)—have sent letters to the heads of Comcast, Verizon, Dish, and other cable and satellite companies demanding to know why such private services carry Fox News, Newsmax, and other supposed purveyors of "misinformation." As Reason's Robby Soave put it, the demand "was an act of intimidation." It's a rare week when high-wattage politicians such as Sen. Elizabeth Warren (D–Mass.) or Sen. Ted Cruz (R–Texas) don't threaten Big Tech with some sort of reprimand because they don't like what's popular on Facebook or Twitter.

The good news is that laws seeking to control individuals and platforms are blatantly unconstitutional because they compel the speech of private actors and because Section 230 of the Communications Decency Act allows broad discretion in running websites and platforms. When challenged in court, they'll almost certainly be struck down. 

The bad news is that the laws just keep coming, because politicians of all stripes want to control speech in a way that favors their agendas and they don't care about whether a law respects the First Amendment.

We should loudly criticize platforms for kicking people off in arbitrary ways that diminish our ability to freely argue and disagree about politics and culture. We want more participation, not less. But it's even more important to recognize private citizens' and businesses' right to freely associate with whomever they want. Far worse than such private cancel culture is when politicians tell us we don't have a right to insult cops, or when they're the ones setting the rules about what we must prohibit—or allow.

Narrated by Nick Gillespie. Edited by John Osterhoudt.

Photo: RICARDO B. BRAZZIELL/TNS/Newscom; Joe Burbank/Orlando Sentinel/TNS/Newscom; Chris Tuite/ImageSPACE/MEGA/Newscom; Chris Tuite/ImageSPACE/MEGA/Newscom; Bill Clark/CQ Roll Call/Newscom; Andrew Kelly/REUTERS/Newscom; SHAWN THEW/UPI/Newscom; Ron Sachs/ZUMA Press/Newscom; John C. Clark/ZUMA Press/Newscom; Mandel Ngan—Pool via CNP/Newscom; Tom Williams/CQ Roll Call/Newscom