OPINION:
The Supreme Court will soon issue rulings in two pivotal Big Tech disputes about free speech rights. The court will either reaffirm or invert the First Amendment, creating a self-perpetuating censorship regime.
In one of these cases, Murthy v. Missouri, the Biden administration argues that the government, through its officials, has a First Amendment right to coordinate with, and even coerce, Big Tech platforms to censor their political opponents. In the connected dispute, Big Tech’s trade association — NetChoice — argues that the First Amendment guarantees social media platforms the right to censor their users’ speech, nullifying Florida and Texas anti-discrimination laws.
To assert that censorship — the silencing of others’ speech —- is protected by the First Amendment is entirely ahistorical. The First Amendment was crafted to protect political speech and political advocacy, especially those that criticize governments and powerful interests.
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Unfortunately, the Supreme Court has been paring First Amendment protections in recent decades. Political speech must now be logged with government regulators as “independent political expenditures” if the communication has financial value. For example, printing flyers or commissioning an internet ad that expresses one’s own political views is now “reportable.” And if you publicly share opinions that touch on pending legislation? You can end up like Kat Sullivan, the New Yorker criminally charged for a billboard ad supporting sexual assault survivors that she paid for with her own money. Her crime is not paying the state a “lobbyist” license fee beforehand.
If the high court rules for the censorship regime in Murthy, then powerful elected officials like President Biden will be free to pressure Facebook to ban your posts and do so secretly. But you might get sent to prison if you forget to submit a disclosure form before buying a Facebook ad complaining about being censored.
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Only once in history has the Supreme Court seriously limited a common carrier law. That was in the now-discredited Plessy v. Ferguson case, where the court allowed the state circumvention of federal common carrier laws for railroads so as to deny service to Black people. The court legitimized this hate by creating a fiction that discrimination was permissible if a “separate but equal” accommodation were offered. Here, Big Tech does not even offer such a fig leaf. It asks the high court to create an unconditional constitutional right to censor, which would exist even if a Big Tech platform seeks to manipulate an election or is motivated entirely by racial animus.
There would be an easier way for Big Tech platforms to ban users than a full-frontal assault on civil rights law: They could become “publishers,” meaning they could host, edit and promote anyone or anything they choose, just as a newspaper or a book publisher does. Of course, this would also make them liable for the content they disseminate, just as a newspaper or book publisher is.
In addition, when Big Tech companies use their resources and personnel to help certain political candidates get elected, they never explain why they should be allowed to disregard the campaign finance laws the rest of us must follow.
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If the court rules in favor of NetChoice and the administration, the First Amendment will be turned inside out. Government and Big Tech will be able to collude to discriminate against people based on their political views, race, sex or religion, erasing individuals’ right to object. This is the antithesis of what the First Amendment is meant to protect.
• Dan Schneider is vice president of MRC Free Speech America. Tim Kilcullen is its counsel for investigations.
* Original Article:
https://www.washingtontimes.com/news/2024/jun/11/supreme-court-considers-turning-first-amendment-in/?utm_source=smartnews.com&utm_medium=smartnews&utm_campaign=smartnews%20