Op-Ed: The First Amendment Online Applies To Platforms Too

Dan Savickas

November 28, 2022

This piece was originally published in RealClear Markets on November 22, 2022.

As the dust settles on the 2022 midterm elections, more data is coming in regarding the expense of the election season. According to OpenSecrets, donations and spending on this cycle are expected to shatter records. Individuals and businesses dedicated resources towards the candidates they favored, a massive display of our electoral system at work and one of the most important ways people across the country exercise their right to free speech.

Supreme Court Justice Samuel Alito affirmed this just two weeks before the election when he gave a speech at the Heritage Foundation. Alito defended his decision in the Citizens United v. FEC case, saying, “If corporations did not have free speech rights and the government could regulate all of this as it wished — wow. Who wants that regime?” The decision in question prohibited the government from restricting corporate donations towards political ends through independent expenditures.

However, Alito’s comments on corporate speech as it relates to electoral politics does not square with recent decisions he’s made on the court. In May, the Supreme Court voted 5-4 to block implementation of a Texas law that would have prevented social media companies from censoring certain political content on their platforms. Alito was the foremost of the four dissenting justices who would have allowed the law to go into effect.

The discrepancy was noted by University of California law professor Rick Hasen. “I plan to quote this language back to Justice Alito if and when the Court decides whether states like Texas can force social media companies to carry the speech of politicians,” said Professor Hasen.

This is an important distinction. The First Amendment protects the American people from having their right to free speech abridged by the government. However, it does not prohibit private entities – whether they be individuals or businesses – from setting their own speech-related policies on their own property. In much the same way that a restaurant owner can kick a patron out for causing a scene, that same right extends to a social media company desiring to censor a person or post for causing a digital scene of sorts.

In the late Justice Antonin Scalia’s opinion in Citizens United – an opinion which Justice Alito joined in full, Scalia notes the First Amendment was written “in terms of speech, not speakers” and that “its text offers no foothold for excluding any category of speaker.” In 2010, Justices Scalia and Alito understood that the First Amendment was not merely reserved for individuals. Moreover, they understood that it was important for this constitutional protection to extend beyond that.

The passage of time, developing circumstances, and the emergence of new technologies ought not change the nature of constitutional rights. The Tenth Amendment right of state governments to be free of federal interference on many issues of importance does not apply only to the states that comprised the Union at the time of the ratification of the Bill of Rights, but to all 50 states. The Eighth Amendment protection against cruel and unusual punishments does not extend merely to punishments that were conceivable in 1791, but to all forms of cruel and unusual punishment that have been created since. The Fourth Amendment protects your desk drawer as much as your desktop computer.

In the same way, though the modern conceptualization of corporations or the methods of speech available now are drastically different, the First Amendment promise of free speech and association is the same. This right applies to people like Mark Zuckerberg, Jack Dorsey, Elon Musk, and any other potential innovators, and shareholders, in social media. They are so entitled to moderate speech on their platforms in any way they see fit. And, as it would have been in 2010, any government edict to the contrary would be blatantly unconstitutional.

This truth is especially important as tech companies work their way further into the national political discourse and draw the ire of politicians on both sides of the aisle. It is perfectly acceptable to take issue with the censorship policies of some of these companies. That is the free market right of any consumer to demand better from the services they use. However, ultimately – and legally – the right to make those decisions rest with the companies themselves and with the men and women who built the company and the platform.

As a new Congress will be sworn in in a couple of months’ time and a number of tech-related cases will make their way through the nation’s court system, the nature of the First Amendment will be on trial. Regardless of one’s feelings towards “Big Tech,” it is in everyone’s best interests that lawmakers and judges affirm that the First Amendment remains the same as it has and will continue to remain. That is what is at stake in this debate.