Republicans Think Companies Can Say What They Like, As Long As They Like It

A weird thing about rights is you can’t restrict them because the other guy hurt your feelings. The right usually offers some variant of this when someone tries to prevent the circulation of hate speech or when they’re not too busy yelling “SHALL NOT BE INFRINGED” as they enter Walmart with a rifle or a portable bazooka to own the libs. Unfortunately, not everybody got that memo.

Right-leaning folks are angry that social media platforms won’t let them broadcast their opinions. Social media companies and other corporations are hastening moral decay and decadence with their, uhh… razor commercials! And their Gay Santas! And these things need to be stopped because the people on the Reich have a constitutional right to free speech, protected by the 1st Amendment!  Even though the 1st Amendment only applies to the government. And corporations aren’t the government. Corporations are people, actually. And as such, they themselves have 1st Amendment protections. So the laws the Republicans are trying to pass that would force platforms to share said opinions are probably — and here’s the kicker — unconstitutional.

Laws that regulate the content of speech are suspect under the First Amendment. In a June order blocking enforcement of SB 7072, a federal trial judge noted that Florida’s law is “about as content-based as it gets.” To have even a chance of standing, a law that favors some speakers or messages over others must further a compelling government interest. Florida’s desire to prop up conservative speech is not the ticket. As the judge who blocked SB 7072 put it: “Leveling the playing field—promoting speech on one side of an issue or restricting speech on the other—is not a legitimate state interest.”

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This is something that should be obvious, especially in light of the jurisprudence that flows from 1st Amendment case law. Like, you’d have to advocate for wholesale departure from the rule of law to get at the philosophic and traditional basis that we have for the current 1st Amendment. And they’re doing that too.

Harvard’s Journal of Law and Public Policy recently published a manifesto that calls for a teleological interpretation of what the law ought be in matters of ambiguity. This would result in clear lawmaking at the bench, which is surprising for a journal that claims to be “the nation’s leading forum for conservative and libertarian legal scholarship.”

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Is the takeaway that lawmaking is a thing legislatures should be doing, unless it results in outcomes that are anathema to Republican agendas? It may make some sense of the SB8 debacle, but I wonder how sustainable this strategy is for the party’s longevity.

The Right’s New Legal Crusade Against Corporate Free Speech [The Bulwark]

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. Before that, he wrote columns for an online magazine named The Muse Collaborative under the pen name Knehmo. He endured the great state of Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.

Topics

1st Amendment, Free Speech, Government, Social Media, Twitter