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Let them eat Twinkies

I saw an article confirming, “Facebook removes video interview with Trump, citing his ban from the platform,” which made me happy. In reading the article I learned that the interview in question was between Donald Trump and his daughter in law, Lara Trump; and that she knew in advance that the content would be deleted by the platform.

For those just joining us, Facebook was one of multiple social media platforms that suspended Trump-authored communications following the January 6, 2021 deadly Capitol riots. It made perfect sense: Here was a man who, almost individually and unilaterally, was fomenting dissent among thousands of Americans to the point that they would attack our elected leaders and institutions, bent on retribution and violence. Makes perfect sense; shut off his access.

Or does it?

The question arises: Should Donald Trump have the same First Amendment rights as any other US citizen? And the answer may surprise you, especially coming from me: Absolutely. He should have, and does have, the same right of free speech afforded any of us by the United States Constitution. 

But there’s a catch.

The First Amendment doesn’t guarantee any of us unrestricted speech. It only protects us from government censorship. Said another way, neither the Constitution nor the Bill of Rights says you have the legal right to post anything on Facebook. Facebook, Twitter, and other for-profit, shareholder-owned private communications platforms are not the government. For that matter, governments around the world are struggling with how to regulate these platforms – if they can at all.

This is wildly interesting to me. Here’s a dangerous hypocrite who I would love to see removed from the world in which I live. But is the muzzle placed on him by private, profit-driven entities ultimately more dangerous? And finally, what is the remedy?

This is the first installment of my very first MULTI-POST-SERIES (whoohooo!), addressing this really important issue. The subtopics are as follows: 

  1. What is, and isn’t, the First Amendment?
  2. How do social media platforms change the rules?
  3. What is the best, or least bad, path forward?

In this one I will tackle only the first question from above. If you think it sounds dry, it does! But it won’t be, because – hey – this is me! Give me two paragraphs and if you’re bored, you can bail and I won’t be offended. Promise.

***


What is, and isn’t, the First Amendment?

In 2012, a gay couple, legally married in Massachusetts, returned to their home state of Colorado and wanted to celebrate with a custom cake. The baker, Masterpiece Cakeshop, said “Nope, we don’t bake that way,” and a First Amendment case was born that went all the way up to the US Supreme Court. Does the Constitution extend to carbohydrates? Can you require a private citizen to violate his or her religious beliefs in order to preserve another citizen’s civil rights to marry anyone he chooses? 

And hey, what if they weren't married at all but just wanted a really nice cake to celebrate...whatever.

In their infinite wisdom, the conservative led Court in 2017 avoided the question altogether and instead ruled that the Colorado Civil Rights Commission had expressed “hostility to religion” and thus violated the baker’s rights under the free exercise clause of the First Amendment.

Wait, before you slice your wrists or swear off buttercream forever, it’s important to understand why they were able to do this.

The first important thing to remember is that the Constitution was designed in large part as a response to  everyone’s shared experience with an all-powerful monarchy. Need more information? Watch Hamilton. The goal of the First Amendment was to make speech (and religion, and assembly) protected from government abolition, censorship or influence. Because that was the proven risk of the era, and still fresh in people's minds.

In colonial times, said speech existed exclusively via just that – actual speech – together with a completely decentralized network of unaffiliated private newspapers and printers. Since not everyone could read, the print communications medium was in many ways less impactful than the local tavern and town square. Once again, to quote Hamilton, watch/listen to Farmer Refuted, in which young Alexander challenges a Loyalist who is entreating his neighbors to maintain the status quo with Britain.

No radio. No television. No faxes. Not even a telephone. Or a telegraph. No Morse code! People were informed either by a human being, using the hole in his face, or a newspaper or pamphlet issued by a private author and publisher whose opinion was uniquely his, or hers. All speech was assumed the property of the speaker, or writer. The only credible threat to this model was the potential of being silenced by a government who wished to control the flow, tenor and content of public opinion.

In the 200 years that followed, public speech became far more layered and complex. Capitalism gave birth to distribution models that ensured authors had to be represented by professional agents, and engaged by publishers who handled all aspects of quality control and dissemination. Driven by advertising revenue, newspapers became fertile ground for empire building (Rosebud), not to mention what amounted to private influence of public opinion. All courtesy of the First Amendment, thank you very much.

Then technology gave birth to mass media, first radio and then television, which similarly thrived as billions of dollars annually were pumped into a mechanism in which large media companies assumed responsibility for conveying and controlling information as important as the news about Hiroshima and as inconsequential as commercials for Alka Seltzer. Both were protected by the First Amendment: no government entity could shield us from learning about government sponsored mass murder; nor could they keep a consumer products company from planting an ear worm that had us humming, “Plop plop fizz fizz oh what a relief it is” for days on end.

The significant tollgates in place to restrict and regulate free speech were owned and enforced by private entities motivated by revenue, not the government, and we were okay with that.

And then came the Internet.

While it didn’t happen right away – remember the free AOL disks you used to collect so you could have your 30 or 50 or 100 free hours? – the internet blew up almost every governor placed on communication. It didn’t destroy, but severely damaged, the legacy of white privilege that had filtered virtually all communications in the western hemisphere since time began, by giving individuals and small groups of people a soapbox from which to proselytize that could reach dozens, or it could reach millions.

Here’s the irony: Back when our ability to actually exercise free speech in a way that could influence widespread change was severely limited by circumstance and the profit motive, we mostly didn’t have any complaints about free speech. Everything seemed to work more or less like it should. But when the floodgates were opened, our expectation – our definition of what free speech actually means – changed. I’m going to go into how it changed in the next segment, but in the meantime let’s go back to the Colorado couple and their wedding cake.

***

I don’t want to go through all the layers on this cake history, so let’s keep it snack-size:

  • The gentlemen said, “bake us a cake.”
  • The baker said, “No, my religion prohibits me, and the First Amendment protects me.”
  • The couple filed a complaint under the Colorado Anti-Discrimination Act, which says, “It is...unlawful for a person, directly or indirectly, to refuse…because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.” That seems to cover the waterfront, and several state courts agreed.

Which is how the whole thing got to the US Supreme Court, as Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. And that’s how the right-wing baker came up with a Hail Mary (sorry!) win, kind of. Because in deciding the case, the highest court in the land didn’t rule in favor of the business’s First Amendment right to bake, or not bake, for whoever he wanted to. They ruled against the government, the state civil rights commission, which overstepped its authority in light of the free exercise clause. (Not to be confused with the establishment clause, which says the government will not form or formally endorse a specific religion.)

They did so by – and these are my words, not theirs – shitting all over the bakery owner’s right to pursue his religious beliefs in his everyday life and in the operation of his business.

Now, we could talk about this for days but the important thing is that the US Supreme Court had an opportunity to set precedent and make it constitutionally mandatory for all of us to consider each other’s civil rights when making business decisions. But instead it took the “safe” route and underscored the original intent of the First Amendment: no government entity should impede or pass judgment on a private citizen’s right to exercise his freedom of speech, or religion. By ruling that the baker was obligated to consider the gay couple’s cake over his own religious beliefs, the Civil Rights Commission – the government – jumped the median. And the Supreme Court sent them back.

***

So when we consider any instance of censorship a First Amendment issue, the short answer is: it’s not. We are able to be censored in all kinds of ways, with near-perfect legal impunity. And because capitalism and technology, two things I happen to like and believe in, have effectively shifted the real power away from government and into the boardroom, we are forced to ask ourselves: Does freedom of speech really exist? And if you agree that it does not, and perhaps never has, then what recourse do we have?

What happens when the government isn’t the enemy and the rules don’t apply?

Watch for Part 2! 

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