Applying the First Amendment to the Web Would Be a Nightmare


Applying the First Amendment to the Web Would Be a Nightmare

July 17, 2019

Conservatives see the Constitution as their best defense online, but have they considered the broader consequences?

Conservatives often accuse big tech companies of suppressing right-leaning voices and giving preferential treatment to left-wing commentators and news outlets. Google is the target of these latest allegations, which include a heavily edited video that seemingly depicts an executive suggesting that the company is out to prevent a “Trump situation” in 2020.

Over 40 conservative groups have joined forces to form a coalition to combat this perceived bias. Senator Ted Cruz has grilled Silicon Valley executives about anti-conservative bias at several hearings. And last month, Republican Senator Josh Hawley introduced a bill designed to force big tech platforms to stop treating conservatives unfairly.

Silicon Valley’s hostility to free market perspectives and Republican leaders is backed by evidence: a 2018 survey found that the tech industry has a real problem with viewpoint inclusion. But what’s the solution to this growing problem? According to the conservative Free Speech Alliance, led by the Media Research Center, major platforms such as Twitter and YouTube should “mirror the First Amendment” when it comes to deciding which views their users are allowed to express. Likewise, Senator Marsha Blackburn has called on “tech companies like Google and Facebook to start embracing the spirit of the First Amendment.” Some even argue that big tech platforms act so much like the government that they should also be constrained by the First Amendment.

At first glance, the idea that big platforms should embrace freedom of speech as it’s enshrined in the Constitution instead of banning users or blocking content whenever far-left activists complain about a conservative speaker seems like a sound proposal. If the First Amendment was good enough for America’s Framers, why shouldn’t big tech companies adhere to the same venerable principle when they’re faced with decisions over whether to eject provocative users?

Like many rights secured by our Constitution, the First Amendment’s freedom of speech guarantee is remarkably broad. As a constraint on governmental action, this makes sense: the federal government carries out certain enumerated functions, but its powers are limited, or so our Framers envisioned it. The courts have unfortunately sanctioned an ever-growing federal bureaucracy in the wake of FDR’s New Deal, yet the First Amendment has flourished as one of the Constitution’s few remaining restrictions on unchecked governmental power.

Appealing as “the First Amendment for all” sounds, however, it’s not a solution that would ultimately satisfy most internet users—especially conservatives. That’s because a lot of extremely unpleasant content that few parents would want their children to see, let alone view themselves, is protected by the First Amendment.

Consider the following:

  • After a California high school student fatally crashed her dad’s Porsche, gruesome photos of her badly disfigured body were leaked onto the Internet. Her family hired lawyers to force websites to remove the pictures, but it didn’t work. Sites that uploaded the photos? Protected by the First Amendment.
  • Louis Farrakhan, the Nation of Islam leader, frequently makes anti-Semitic remarks, such as an October 2018 tweet in which he compared Jewish people to “termites.” It’s an odious sentiment, but it’s also protected by the First Amendment.
  • A member of The New York Times editorial board tweeted “Kill more men” in 2014. She went a step further in 2015, tweeting “kill all the men.” The Times stood by her tweets—which, by the way, are protected by the First Amendment.
  • A single father of two young girls ran a YouTube channel where he posted videos of his daughters in severe emotional distress, including a video of him dumping a bucket of frogs in the bathtub while his daughters were bathing. Did the man violate child endangerment laws? Quite possibly. Were the videos protected by the First Amendment? Yes.
  • After Congress passed a law targeting animal crush films, a small-time producer received a 37-month prison sentence for distributing videos of dog fights. He took his case to the Supreme Court, and won when in 2010 the Court ruled eight to one that the federal law under which he was prosecuted was a violation of the First Amendment.
  • So-called “virtual child pornography,” or computer-generated depictions of children who aren’t actually children involved in sexual acts, is protected by the First Amendment, as a seven-justice majority of the Supreme Court heldin 2002.
  • Until YouTube changed its rules last year, the site featured hundreds of videos teaching kids how to cheat on school assignments. Students can get expelled for cheating, but such instructional videos are protected by the First Amendment.
  • On several occasions, Facebook users have livestreamed acts of murder. Although the murderers themselves face harsh penalties, users who repost the clips are protected by the First Amendment.

Of course, the First Amendment doesn’t cover everything under the sun. For instance, speech that’s likely to incite “imminent lawless action” isn’t protected. So while Antifa can’t use Facebook or Twitter to organize campaigns of violence against property owners, the First Amendment nevertheless permits their activists to disseminate propaganda calling for the violent eradication of property rights.

Another exception to the First Amendment is obscene speech. But the legal definition of obscenity is so narrow that even hardcore pornography is often protected. And on the rare occasion that federal obscenity prosecutions are initiated, they rarely succeed, in part because of the difficulty in persuading a jury to unanimously agree on what constitutes obscenity.

Could internet platforms adhere to the First Amendment for adult users while offering a more sanitized universe of content for children? Perhaps. But this approach has its own set of problems.

Consider the nonprofit organization PragerU. The group, which has created hundreds of hit YouTube videos espousing conservative views, is embroiled in a legal battle with Google over allegations that YouTube, which Google owns, made dozens of PragerU videos inaccessible to users with the site’s G-rated mode enabled. Deciding whether a video is kid-friendly, it turns out, is no less fraught than deciding whether a video should stay up at all.

Moreover, even when content is flagged as unsuitable for minors, that doesn’t mean plenty of kids won’t be able to access it anyway. Nearly every major social media service bans users under the age of 13 from signing up, in part due to a 1998 law that requires services to get parental consent before letting kids use their platforms. Yet children routinely circumvent this restriction, often going so far as to use their parents’ credit cards to get around adults only rules.

The upshot: if social media platforms hew to the First Amendment, lots of kids—not to mention lots of adults—will be exposed to some pretty vile content.

Addressing concerns over anti-conservative bias (and lack of transparency and fairness in other areas) should be a priority for social media platforms. But turning social media into a cesspool of nightmarish content in the name of preserving conservative speech is not the right solution.

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