The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Americans Should Be Free to Express Their Opinions About Generals
whether by mail, by phone, or by social media—and whether about the generals' (or admirals') gender identities or religious beliefs or political beliefs or anything else.
The Indianapolis Star (Rashika Jaipuriar and Kaitlin Lange) reports that Twitter has removed Rep. Jim Banks' tweet about "Dr. Rachel Levine, the nation's first openly transgender four-star officer":
The title of first female four-star officer gets taken by a man.
Twitter policy forbids "targeted misgendering or deadnaming of transgender individuals."
I for one do not welcome our new social media overlords. It seems to me that all civilian officials, and all citizens, have to be free to express their views about generals or admirals (and others). That is true even if the views express an ideology about gender identity that, though shared by tens of millions of Americans, is contrary to the views of the executives running Twitter or Facebook.
Of course, I appreciate that Twitter and Facebook are privately owned, and that no-one is being threated with jail or liability or loss of professional license here (though see the other situations described here, here, here, and here). But I think the Court was right in Packingham v. N.C., where it wrote:
A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.
While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the "vast democratic forums of the Internet" in general, and social media in particular.
Indeed, in our hotly competitive political environment, denying particular viewpoints and speakers to social media platforms would indeed sharply distort "the exchange of views," and the electoral results that stem from those exchanges of views, even if other avenues for speech remain available. And Justice Holmes was likewise right when he wrote in 1921 (in dissent then, but the Court soon adopted this as its own view), arguing against Post Office censorship rules:
The United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues, and it would take very strong language to convince me that Congress ever intended to give such a practically despotic power to any one man.
Again, the analogy is not perfect (that's why it's an analogy). The post office in 1921 was likely more indispensable as a tool for communication than social media are today. And the post office is government-owned, so that implicates the First Amendment.
But the point, I think, remains sound today:
We would rightly be upset by either the government or private phone companies dictating what can or can't be said on phone lines. That's true even when there's no privacy concern, for instance when a phone line is being used to publicly promote some cause, or to conduct a get-out-of-the-vote drive. And it's true both for landline companies and for the famously competitive cell phone companies.
We would rightly be upset by either the government or Google dictating what can and can't be said via Gmail. To quote one decision with regard to platforms' common-law immunity against libel liability for e-mail, "[An online service's] role in transmitting e-mail is akin to that of a telephone company, which one neither wants nor expects to superintend the content of its subscribers' conversations."
We should also be upset by such suppression when phones or e-mail are being used to communicate to the public, albeit through the aggregate of one-to-one communications. Justice Holmes, after all, was talking about mailing of a newspaper to a large set of subscribers (indeed, mailing that took advantage of the government-discounted second-class postage rate). Phone lines are, as I noted, often used for mass public communication campaigns. E-mail is used not just to send things to one friend or business associate, but to large sets of subscribers.
I think we should likewise be upset by Big Tech companies imposing such control over social media platforms, like Twitter or Facebook (or indirectly imposing such control by the attempted deplatforming of Parler unless it implemented similar controls). Whether it would be constitutional to treat Twitter, at least as to some of its functions, as a common carrier like a phone company—and thus forbidden from discriminating based on disagreement with the factual or moral assertions that users are making—is a complicated question (which I discuss in detail in this article). Whether it would be good policy to impose such regulations, given all the costs of regulation, is more complicated still.
But while I'm not positive about the solution, it seems to me there is a serious problem here. When Americans can't use some of the most prominent publicly available means of communication to express their views about four-star admirals—whether based on the admirals' politics or actions or gender identity or religion or anything else—something is badly wrong.
