Over the last two weeks, journalists have been releasing various segments of “The Twitter Files” with Elon Musk’s approval. The content is disappointing but not surprising. It confirms what conservatives have known for years: Big tech actively censors us because of its leftist leanings.
Since then, I’ve been getting questions about whether Twitter or its employees could be the subject of a massive lawsuit for the violation of our free speech rights. The answer, ultimately, is that it depends. I’ll try to answer that question here by explaining what the right to free speech is, who the First Amendment binds and whether big tech could be liable for violating those rights.
Free Speech and the First Amendment
The First Amendment of the United States Constitution says, “Congress shall make no law … abridging the freedom of speech ….” The 14th Amendment applies this right to the states. Thus, the First and 14th Amendments prohibit the government from abridging our freedom of speech. However, the Constitution says nothing about private companies.
Why then do we often feel that big tech violates our rights to free speech? I think the answer is because freedom of speech is more than just a constitutional right — it’s a natural, God-given right. We have a God-given duty to seek truth, and the freedom to speak is a necessary part of that process. So if we’re speaking truth, and someone is shutting us down because of it — especially when they hold themselves out as a platform where people can come together and speak — then our God-given right of free speech is being abridged. Nevertheless, it does not necessarily follow that the First Amendment is being violated, because the First Amendment applies to the government.
To use another example, if a private actor murders someone, the murderer deprived the victim of his or her God-given right to life, but it doesn’t necessarily follow that they violated the Constitution’s Due Process Clause. That clause prohibits the government from depriving any person of life without due process of law. So while the murderer violated someone’s rights, even the right to life, it doesn’t necessarily follow that the right to life that the Constitution recognizes was violated, because the government didn’t do it. There are other laws that protect those rights though, and they are usually found in state or federal statutes.
So with all that said, it does not necessarily follow that big tech violated the First Amendment because it censored speech. Recognizing this, conservatives in Congress have been calling for the repeal of Section 230. Vivek Ramaswamy has likewise proposed adding political views to the list of classes protected by civil-rights law. These are all fair options to consider.
However, just like with any rule, there are exceptions. The courts have held (and rightfully so) that a private party can violate the First Amendment when it is acting as a government agent. For instance, if a police officer wants to search my house but knows he doesn’t have probable cause to get a warrant, he can’t put my neighbor up to breaking into my house and looking around. If he did, both the officer and my neighbor would be liable. The officer can’t say, “It wasn’t me,” and my neighbor can’t say, “The Fourth Amendment doesn’t apply because I’m not the government.” They acted together and are liable together.
That’s where this could get interesting when it comes to The Twitter Files. Twitter’s former head of Trust & Safety Yoel Roth admitted to having meetings with the FBI and Homeland Security after Twitter started engaging in egregious censorship. The Twitter Files also revealed that Twitter actively suppressed content at the request of the Biden campaign. If it continued to do so at the request of government agents, that’s when it could be liable.
Musk also recently tweeted that his preferred pronouns were “Prosecute/Fauci.” Conservative commentaries and comedians the Hodgetwins replied, asking if he found evidence that Twitter suppressed COVID information at the administration’s request. Musk replied with the trophy emoji. Thus, it appears that the Biden administration used Twitter to help control the COVID narrative. It makes me wonder how many people died because doctors and patients could not get access to all the information necessary to treat patients effectively.
Between the FBI, Homeland Security and, perhaps, Fauci appearing to use Twitter as their own propaganda machines, I think those are the best grounds for a First Amendment suit, at least against the former Twitter executives who enabled such conduct. If those suits come, my hope is that they will provide an effective deterrent against big tech in the future. If big tech is ever tempted to get in bed with the government again to suppress speech, the coming lawsuits should be an effective reminder that being the government’s propaganda machine will be costly in the end.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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