April 13, 2024
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The Online Public Square and the Need for a New First Amendment

Alexandra Ocasio Cortez’s latest idea either shows her ignorance of the Constitution or perhaps more frighteningly, her lack of concern for its established bedrock freedom—particularly, the First Amendment. Cortez says she “and other members of Congress” (presumably the squad) are in discussions to initiate a “fact-checking commission” which would sanction “disinformation and misinformation.” She said the ultimate goal is to “rein in the press from spewing out things that are false.”

The commission is a non-starter: The First Amendment clearly says: “Congress shall make no law…abridging the freedom of speech, or of the press;…”

OK, getting by the desire to disregard the Constitution, the idea is simply dangerous. I am not saying this as a partisan. Once you put a person or a group of persons in charge of deciding what is true, it provides the power to criminalize dissent, and a government or an agency free from criticism is one with unchecked power to do as it pleases. This is an idea that should scare liberals as much as conservatives.

Frankly, what we need is more freedom not less. It was reported this week that Twitter deleted thousands of accounts. Separately, Apple and Amazon removed a new app for Parler, a social networking site that has quickly been gaining popularity as an alternative to Twitter and Facebook, but with less content regulation. That is the problem, said Amazon: “Parler demonstrated unwillingness and inability to remove content that threatens public safety.”

Parler, which has initiated a lawsuit, says it is in the business of “promoting free speech.”

Amazon and other websites have the backing of Section 230 of the Communications Decency Act, which shields internet sites from sanction relating to published content, so long as it is not original content. The criticism of 230 is there is no pushback for internet providers to police content and remove, or at least label “harmful content.” I am not sure how internet providers do this without getting perilously close to AOC’s “truth commission.”

While it is true that internet companies are not the government, and accordingly not subject to the guarantees, nor the restrictions of the First Amendment, it does lead to the question as to whether they should be.

Just like the 1964 Civil Rights Law created a legislative structure that prohibits discrimination in the private workplace, private housing, and private enterprise with respect to public accommodations (hotels, stores, restaurants), we seem to have survived as a society and adjusted pretty well to the now non-controversial concept that illegal discrimination should be subject to sanction, even in the private sector.

What we may need today is a similar concept with respect to internet postings, which takes Section 230 and moves it one step beyond.

The internet is truly today the public square, the street corner. For better or worse, the medium is the marketplace of ideas. Admittedly, that sometimes includes bad ideas as well as good. But it seems counterintuitive to me to give Facebook the power, to give Twitter the power, to give Apple and Google the power, to decide which opinions are “offensive.” Which opinions are “dangerous.” And personally, I think it’s dangerous to give big media that power.

We need more protection for the public, not less. I propose that Congress acts, but in a manner that extends protection, protection that private media has through the First Amendment, and that internet companies have through the Communications Decency Act, and provide it to individuals. People need the right of freedom of expression protected where they use it most.

Today that is not at the “town square”—it is online!

Now I can sense the criticism. “Stephen, won’t this mean that the internet would become a home for hate speech?” It is a valid criticism. The answer is, yes, it will allow more hate speech to be aired—but no more so than already exists in public—and that hate speech is protected by the First Amendment. To my mind, it will also provide the opportunity to expose and denounce hate speech. The public does a pretty decent job right now of making hate a social cost so I do not believe extending First Amendment protections to online posts would appreciably increase the level of online hate.

In any case, if you look for it, it is already there- plenty of it. Internet providers today do an awful and are capricious in determining what violates “community standards” and what does not. Many times, it appears that the conclusions are arbitrary.

We, as Jews, are aware more than most of the amount of hate comments that are permitted online. As a minority in the United States we should be especially alarmed with the prospect of a committee, or even a company which takes advantage of its full authority to determine what is acceptable to express and what is not. As a minority, we may often have a different viewpoint, or have issues that affect us distinctly but are benign through most of society. Issues like the preservation of brit milah or access to kosher meat, issues that opponents will often try to dress up as humanitarian issues.

The ability to pick and decide acceptable and unacceptable arguments is exactly what would occur with a Congressional “truth commission.” I am glad that Congress is talking about it, but ultimately I think the thrust of the new Congress in seeking punishment for unpopular opinions is diametrically and unequivocally wrong.

I am waiting for the first member of Congress to step up and promote more freedom and more protection for the public, not less. Right now the Democrats are seeking to hand more power to Big Tech. Is that the look they really want?


Stephen R. Loeb is presiding attorney of a law practice in New Jersey and New York. He can be reached at [email protected].

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