The First Amendment opens with the words “Congress shall make no law.” But what happens when corporations gain just as much or more power than Congress to curtail free speech? Though conservatives and liberals protest censorship by companies like Google, Twitter, and Facebook, two recent cases suggest the courts don’t want to see the First Amendment applied to Big Tech anytime soon.
A federal judge last Wednesday dismissed a presidential candidate’s multimillion-dollar lawsuit against Google. Rep. Tulsi Gabbard, D-Hawaii, claimed Google violated her free speech rights by suspending her campaign’s political advertising account for six hours shortly after a Democratic debate. Google reinstated the account after censors realized it had been flagged in error.
In a terse opinion, U.S. District Judge Stephen V. Wilson of California threw out Gabbard’s complaint because “Google is not now, nor (to the court’s knowledge) has it ever been, an arm of the United States government.” He dismissed Gabbard’s argument that Google’s political advertising rules amount to election regulation, a power traditionally reserved for the government.
Another court dismissed a similar lawsuit from the other side of the aisle for the same reason. On Feb. 26, Judge M. Margaret McKeown, writing for a three-judge panel of the 9th U.S. Circuit Court of Appeals, affirmed a lower court correctly dismissed conservative PragerU’s lawsuit against YouTube. McKeown found that merely hosting speech did not transform Google into a government-like actor.
PragerU’s October 2017 lawsuit alleged YouTube reduced its viewership and revenue with “arbitrary and capricious use of ‘restricted mode’ and ‘demonetization’ viewer restriction filters.”
Conservatives and liberals have found common ground critiquing internet giants. The American Civil Liberties Union advocates for applying free speech guarantees to tech company regulations. Yale University law professor Jed Rubenfeld argued in the National Review that courts should treat the ubiquitous and omnipresent online platforms as government actors, subject to free speech guarantees.
“Today a few private corporations have far more power to censor speech, controlling what billions of people see and say, than our governments ever did,” Rubenfeld wrote. He said the platforms should strictly regulate unlawful or threatening content while protecting opinion-based speech.
But that free-for-all approach has serious drawbacks, said Daphne Keller, a fellow at Stanford University’s Center for Internet and Society. It could hurt platforms’ business because advertisers don’t want to be associated with hateful or offensive messages, she said, and the government likely would not do a better job moderating content than the social media companies.
Elected officials like U.S Sens. Ted Cruz, R-Texas, and Josh Hawley, R-Mo., have championed curbing tech giants’ allegedly biased “content moderation.” Some recommend shrinking online platforms’ broad immunity from being held liable for user content under Section 230 of the federal Communications Decency Act. But that could encourage even stricter censorship and prove difficult to implement.
Whatever the solution, Big Tech censorship promises to continue to be a controversial and vexing topic. With both sides of the aisle unhappy with their oversight of a significant “town square,” Big Tech has every reason to get it right.