Speech, Property Rights in Trump's Crosshairs

The Hill has published an editorial by Alan Dershowitz on Donald Trump's new lawsuit against several major social media companies. If I recall correctly, Dershowitz is widely regarded as an expert on freedom of speech.

If my memory has served me well, God help us.

Image by Jens Holm, via Unsplash, license.

The Miami Herald precedent and those that followed it came long before a small number of social media behemoths assumed so much control over the marketplace of ideas. At least one justice -- Clarence Thomas -- has indicated a willingness to consider whether these media giants should be treated as common carriers that are subject to some governmental regulations. But media companies are different than buses. The product they sell is public speech and press, which are expressly protected from government regulation by the First Amendment.

The conflict between free speech and the First Amendment arises when these private companies use the First Amendment as both a shield and a sword selectively to censor [sic] free speech. The conflict becomes most acute when a small number of private companies are powerful enough to essentially shut down the marketplace of ideas -- which the First Amendment was designed to keep open -- to certain views. [links omitted, emphasis mine, format edits]

There are at least three things I can see wrong here, just off the top of my head. (1) The concept of censorship pertains only to government action. (See link above at sic.) (2) Forcing a private company to publish views its owners disagree with very much violates their right to freedom of speech. And (3) these companies are not selling speech, but providing a platform -- their platform -- for same in exchange for the ability to insert advertisements. So forcing these companies to provide a platform for some speech is not just a violation of the owners' right to free speech, it also violates their right to the use of their own property as they see fit.

(Before I go on, let me make clear that my recognition that the left-wing apparatchiks who run these platforms have the right to cherry-pick which politicians they will host is not in any way an expression of moral support for what they are doing or for their anti-American, "progressive" causes.)

Gus, you're a just some random -- albeit pretty sharp -- dude on the internet. Who cares what you say? Fine. Let's quote the widely respected philosopher, Tara Smith, who has been published in peer-reviewed law journals, on this matter:

People sometimes treat the ability to do something interchangeably with the freedom to do that thing. This is reflected in the complaints that because a person can no longer use Facebook or broadcast his political views at work, his rights are violated. On just a bit of reflection, it is easy to see that there are plenty of things that a person is unable to do that he remains free to do. I cannot speak Polish, as it happens, and I do not know how to juggle, yet no one has interfered with my freedom to do either. Had I wanted to learn, I have been free to do so. My inability results from factors other than others' coercion. Admittedly, other people play a more influential role in a person's inability to broadcast his beliefs through certain media (T-shirts at work, on Facebook, etc.). Yet those uncooperative people are not coercing him. His freedom is intact, although his desires may be frustrated. For freedom does not mean: "I get what I want." (Again, such a notion of freedom could only be fulfilled by trampling on others' freedom. It is thus not an internally coherent conception.) The larger point is simply that an inability does not entail a lack of freedom. [emphasis added]

This Smith specifically enumerates within an article titled The Free Speech Vernacular: Conceptual Confusions in the Way We Speak About Speech. I highly recommend anyone genuinely concerned with freedom of speech, our most important right, read it and recommend it widely: That right (not to mention property) is now under direct assault by a man once sworn to protect it, and under the cover of at least one person whose authority seems more dubious than that of the proverbial One-Eyed Man in the Land of the Blind.

-- CAV