Favoring one message over another

Last week, the White House suggested that the Big Tech companies—Facebook, Twitter, Spotify, etc.—should censor speech. That the government is bringing its influence to bear for purposes of shutting down content with which it disagrees violates the fundamental premise of the First Amendment.

The present controversy arises from Spotify’s announcement that it will be including “content advisories” to combat “misinformation” about COVID-19. But this wasn’t enough for the Biden administration. At a press briefing, White House Press Secretary Jen Psaki, speaking from one of the most powerful podiums in the world, applauded Spotify’s speech disclaimer and demanded that more be done. She described Spotify’s advisory as “a positive step” but urged “every platform to continue doing more to call out misinformation while also uplifting accurate information.”

What precisely does the administration have in mind? According to Psaki, “Our hope is that all major tech platforms—and all major news sources for that matter—be responsible and be vigilant to ensure the American people have access to accurate information on something as significant as COVID-19.” In other words, the government is asking Big Tech to censor speech based on its message.

The Framers of our Constitution would be turning in their graves. They included the Bill of Rights to preserve fundamental freedoms. And they placed in pride of place the right to speak freely. The Framers viewed the First Amendment, with its rights of free speech and free exercise of religion, with the right to assemble and to petition the government, as key to making every other freedom possible. The right to speak freely, especially on matters of public concern, enables our participation in the democratic process.

There’s no question that the government may not censor speech based on its message. As the U.S. Supreme Court has held, the free speech clause “has no more certain antithesis” than when government interferes with speech to either promote “an approved message” or discourage “a disfavored one.” Indeed, the “bedrock principle underlying the First Amendment” is that “government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Should the government pressure private companies to do what the Constitution forbids? Should the Biden administration ask Big Tech to engage in censorship activity that would be blatantly unconstitutional if undertaken by the government?

For better or worse, today’s public square—the forum where citizens of old would gather to debate ideas—is the internet. In 2018, the Supreme Court even identified “cyberspace,” and social media in particular, as the most important place for the current exchange of ideas. And that means much of our social discourse takes place on privately owned platforms to which the First Amendment does not apply (because that amendment applies only to government conduct). The government should not advocate that these platforms engage in censorship.

Further, as the Supreme Court has long held, the remedy to disinformation is more speech, not censorship. Underlying the First Amendment is the idea that the government should not interfere with the marketplace of ideas. As John Milton put it in his Areopagitica: “Let Truth and Falsehood grapple; whoever knew Truth put to the worse in a free and open encounter?”

There’s also the “who decides what misinformation is?” problem. That gives enormous power to Big Tech companies (here at the behest of the government) to skew information on debated issues. But in speech matters, the Constitution entrusts that determination to the people, not the government.

At the end of the day, our constitutional guarantee of free speech means little if it only protects speech the government (or Big Tech) finds unobjectionable. In the words of Justice Robert Houghwout Jackson in West Virginia State Board of Education v. Barnette, a case holding that the government may not compel individuals to violate their conscience: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

The Constitution forbids the government from prescribing orthodoxy and from disfavoring messages with which it disagrees. The government should not call upon Big Tech to do its dirty work.