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Flirting with the First Amendment

Tech companies’ private actor status is a fiction, no more than a smoking mirror.
[additional-authors]
February 19, 2021
Photo by FL-photography/Getty Images

In the aftermath of the January 6 riots on the Capitol, we have witnessed a change in how tech companies view, regulate speechand control speech. In the days and weeks since January 6, multiheaded pseudo private actors have fundamentally altered the bedrock of American democracy — free speech. No longer can private companies like Facebook, Twitter, Google, Instagram, Snapchat and others hide behind the veil of their “private” shield, because they created themselves for the sole purpose of being thrust into the mitochondria of all that is public.

According to a CRS Report prepared for members and committees of Congress, the Supreme Court will only apply the First Amendment against private parties (companies) if they have a “sufficiently close relationship” to the government. This will occur where a private company finds itself under extensive state regulation.

While some plaintiffs have argued that various internet companies should be treated as state actors for the purposes of the First Amendment, when those companies decide to dispose of or restrict access to their speech, courts have rejected their claims. In other words, just because social media companies hold themselves open for use by the public, that is not enough to make them subject to the First Amendment.

But the Constitution of the United States — together with its deafeningly powerful First Amendment — did not foresee the age of social media and what it would do to the public, how it would intertwine public and private interests of communities and how the lines between state actors and private actors would not only become blurry but also almost invisible. The existing doctrine doesn’t fit the times; it teases, it mercilessly flirts with the laurels of the First Amendment.

We all marvel at the Constitution’s elasticity, designed for us by those who knew nothing of Facebook, but everything about the abyss of the future’s unpredictability. After all, what was the intent behind the First Amendment? So that American citizens would never feel the imposition of powerful actors infringing on one of their inalienable rights, their freedom of expression.

In the 1700s and 1800s, the most powerful actors in the country were the state actors. America had just freed itself from the clutches of the British monarch. The government itself was the most powerful actor that was connected to the public. Therefore, within the amendment, people were protected not from actions of private parties but from actions of the State.

It is not so today. The world, and especially America, is controlled by private monopolies of social media giants, which regulate our entire existence (as well as the government’s existence). The internet, along with social media, did not just shake up the old world: it remolded it. All of this was done for the public.  These social media titans not only provide services for the public, such as search engines, they also serve as vessels through which the public carries its thoughts and influences the thinking of others.

David L. Hudson Jr. writes in his article “In the Age of Social Media, Expand the Reach of the First Amendment” that “two key justifications for robust protection of the First Amendment right to freedom of expression are the marketplace of ideas and individual self-fulfillment. These justifications don’t require government presence. Powerful private actors can infringe on free expression rights as much as public actors.” This is exactly what Facebook, Twitter and others were guilty of when they decided to silence President Trump after the January 6 riots.

David L. Hudson, Jr. continues, “when an entity like Facebook engages in censorship, individuals don’t get to participate in the marketplace of ideas and are not allowed the liberty to engage in individual self-fulfillment — just like when the government entity engages in censorship.”

In his article, Hudson also states that even though the state action doctrine traditionally limits the application of the First Amendment to private actors, that classification is outdated. He cites a 2017 case in which the U.S. Supreme Court recognized the new reality of identifying the new kind of public space. A new reality has been molded, where, “when a private actor has control over communications and online forums, these private actors are analogous to a governmental actor.”

The ogres of social media have erected platforms for exchange of public information. In his article, “The Great Tech Panic,” Nicholas Thomson writes about the role of social media on freedom of expression: “In 2009, Facebook declared its mission “to make the world more open and connected.” In her essay, “The Free Speech Black Hole: Can The Internet Escape the Gravitational Pull of the First Amendment?” Ann Marie Franks writes, “This free speech rhetoric has for years been employed to justify [tech] companies’ laissez-faire approach to controversial content, from terrorist training videos to ‘revenge porn.’”

So why is it that suddenly, in the wake of the events of January 6, the entire tech industry decided to ban Trump from their sites? They do so by the cowardly act of taking refuge under the protective shield of their private status, knowing full well that under modern circumstances, their private actor status is a fiction, no more than a smoking mirror.

Tech companies’ private actor status is a fiction, no more than a smoking mirror.

These companies behave dishonestly when on the one hand they take advantage of the fruits of the First Amendment and give Holocaust deniers, criminals, terrorists, porn stars, law professors, comedians, addicts, movie stars, pop musicians, politicians, reality TV stars and many others the opportunity to present their uncensored sentiments and ideas, but then at the same time decide to silence a particular individual. The tactic is liable to have the most severe consequences.

The First Amendment is not a device that we can use as a cherry-picking mechanism. The First Amendment is not a neat amendment; it is not a kind amendment; it’s a messy amendment. It is not about people, it’s about substance; it isn’t even about speech itself, it is about self-expression, it is about the individuality not of one person, but of a country, and therefore of each person individually.

Social media companies have become public actors, and, as such, they have no right to censor those who post or otherwise express unpopular opinions. Afterall, there are always ways to contradict those unpopular, dubious, immoral views; this is one of the great strengths of social media.

I knew the words of the Declaration of Independence and the First Amendment in Russian and English even before I began school. I understand that media companies are trying to appease, to do what sells best; when Trump sold best, they sold him too. But social media insulted American democracy when it silenced one individual capriciously and arbitrarily. Social media must stop playing games. It is either for all people — which is why it is free and available to all who have access to it — or for the privileged few, like a private club, in which case a club owner is within his rights to impose specific rules for his club members.

America ceases to be America when it not only denies people’s ability to self-express but also when it does so by taking advantage of the public’s trust in its democratic values. American freedom of speech protects, it frees, it tantalizes, but it also bites. There can be no compromise about it.

The First Amendment was created to oppose tyranny because within it is hidden, just like in all law perhaps, the power of balance. Everyone wants to be heard, everyone wants to tell a story — their own story — and so as long as no-one is muted (even if some decide to remain deaf) there will be balance, and where there is balance there is a chance that tyranny may be avoided.


Anya Gillinson is a published author of poetry in Russian and English. She practices law in New York, where she lives with her husband and two daughters.

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