By JUDGE ANDREW P. NAPOLITANO
A colleague recently asked me if I approved of Big Tech censoring political and cultural voices on their platforms. My colleague believes — as do I — in natural rights, minimal government and that owners of private property can use it as they see fit. We both condemned the Big Tech censorship. Then he asked if the government could regulate these platforms. I offered that it could not.
These questions arose from the reported efforts by Facebook to bar from its platforms those who wish to offer scientific, political or cultural arguments against mass vaccinations. Many of these arguments are sound and fascinating. Nearly all are provocative. They are the essence of free speech. Should those who offer them be silenced on a platform used by billions of folks?
Here is the backstory.
The freedoms of thought, speech and publishing are natural rights. Just as one can naturally think as one wishes, one can say what one thinks and publish what one says. Speaking and publishing are also constitutional rights since the First Amendment expressly protects them from government infringement. A natural right comes from our humanity — not from the government — and is knowable and usable by the exercise of reason.
Speech is second nature to us, and in America — for the most part — speech is free. In this context, the word “free” doesn’t mean “without cost.” It means “without a government permission slip or reprisal.”
The history of free speech in America is a tortuous one. In 1798, John Adams used the Alien and Sedition Acts to punish speech critical of himself and the Congress. Abraham Lincoln arrested newspaper reporters and editors in northern states critical of his war leadership. Woodrow Wilson arrested those who urged draft resistance during his war.
In all of these interferences with speech, the government has done the interfering. Indeed, the reach of the First Amendment is limited to government. Even though it states, “Congress shall make no law,” today, that language applies to all legislative bodies and executive officials — local, state and federal. Congress cannot outlaw speech; neither can a state legislature or a city council. The president cannot interfere with speech; neither can a governor or local officials.
What about private persons operating private venues? Can executives at Facebook ban speech with which they disagree? The short answer is: Yes, they can.
Facebook operates a business that consists of making a digital bulletin board available for all. The bulletin board is private property. It is not owned by the government. The owner of private property who invites others onto his property for the benefit of both can establish ground rules for the use of that property. You can kick me out of your garden party because you don’t like the color of my shirt. You can also do so if you don’t like the tenor of my words. And you can fire me as your lawyer if you hate my political views. The government cannot do any of these things.
If Big Tech platforms want to migrate from communication to indoctrination, they are free to do so under basic property rights and First Amendment law. While I understand and share the anger and frustration of those whose views have been censored, this is not a problem for government to solve because it is private property and the government can neither silence nor compel speech on private property.
The very threats to insinuate government controls between writers and their venues are themselves unconstitutional, as they constitute “chilling.”
Chilling consists of any intentional government behavior — official or rogue — that gives a speaker or writer pause or second thoughts out of fear of what the government might do as a consequence of the exercise of freedom of speech. Thus, an FBI agent coming nose to nose with you as you are publicly criticizing the FBI would constitute chilling, as would the threat to do so, as is the threat by persons in government to regulate the Big Tech bulletin boards.
The whole purpose of the First Amendment is to keep the government out of the business of evaluating the content of speech. I am not talking about noise in the streets at 3:00 a.m. I am talking about public officials having the power to dictate what private people and venues may say and publish.
Such government behavior would undermine the fabric and core of the United States. It would truly be a remedy worse than the disease because the government would favor the speech of its patrons and punish the speech of its adversaries — the very acts the First Amendment was written to prevent.
None of this is to say that Big Tech executives are faultless. It is hateful for them to define our identities. And that is what they do when they silence critics of vaccines or even when they silence a former president. Everyone has the natural right to be the author of his or her own identity and destiny. And we have the natural right to become informed by gathering whatever data and opinions we choose to gather. We are not infants who thrive on a filtered stream of news and opinion, tailored to please those who do the filtering.
What can we do about this? We can use the tools of the free market and the First Amendment. We can loudly leave the censoring venues and not patronize their advertisers. We can build and support other venues. We can preach the values of an informed public and the virtues of personal liberty. We can foster widespread opinions that censorship is repellant and censors should be shunned.
But we can never use the government to compel or evaluate speech. That will destroy what freedoms we have.