Is the 21st century&#39;s idea of &quot;freedom of speech&quot; based on precedent? Reading the First Amendment strictly through a textualist lens it is understood that Congress cannot limit our speech, but the First Amendment does not say anything about companies limiting it, or even the Executive branch limiting our freedom of expression through an executive order. First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Since the First Amendment text is only about Congress's restrictions on making laws about speech, is the understanding that &quot;we have the freedom of speech&quot; based off of precedent set by courts?
Trivially, yes The First Amendment was adopted on December 15, 1791. Every time there has been a dispute about what it means that has gone to court since then, the judgement of that court has established, overturned or clarified precedent - that's what common law courts do. The government can limit your speech The Supreme Court has recognized categories of speech which receive lesser or no protection from the First Amendment. For example, inciting lawless actions, fighting words, true threats, obscenity, child pornography etc. They have also determined that it doesn't limit the government's power to impose reasonable time, place or manner restrictions on speech. As Justice Holmes put it in Schenck v. United States (1918), &quot;Even the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic.&quot; It applies to parts of government which derive their power from Congress Which is, in most cases, all government. The executive actually has surprisingly little power granted by the Constitution (Article II, Section 2). All the other powers of the executive are technically delegated powers of Congress and are therefore subject to the First Amendment. Similarly, only the Supreme Court draws its mandate without going through Congress Article III, Section 1) - all other courts are subject to First Amendment restrictions. It only restricts government The limitation is a negative one on the US Congress (and through incorporation, the states). It does not, of itself, restrict private actors who are free to restrict speech however they want within their own property, including both physical and online spaces. It is open to the government to enact laws that would extend an affirmative right to free speech onto non-state actors (see Pruneyard Shopping Center v Robins (1980)), however, the Federal government has not done so and neither have most states.
Yes, legislative bodies can pass legislation that constrains the interpretation of the rest of their legislation. In the U.S., see 1 U.S.C §1-8. In Canada, see The Interpretation Act. In British Columbia, see The Interpretation Act. As an example of a back-and-forth between the courts and congress regarding a setting a standard of review, consider the passage of the Religious Freedom Restoration Act (RFRA). Summarizing from Holt v. Hobbs 574 U. S. ____ (2015): In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), the Supreme Court held that "neutral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment". Congress desired a stricter test that prohibited the burdening of religion regardless of whether the laws are neutral or generally applicable. Congress passed RFRA in 1993, which required that "[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, unless the government demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest". RFRA was passed with the goal of setting the standard of review for all other legislation that burdens a person's exercise of religion. Without RFRA, the standard of review would have been that used in Smith, based solely on First Amendment protections. With RFRA, the standard of review became stronger, basically strict scrutiny. An example of Congress setting the factors to be used in a balancing test is the addition of fair use via the Copyright Act of 1976. Prior to 1976, courts had been applying a fair use exception based on common law rather than statute. The act encoded in statute the four factors that Congress wanted to be considered and listed several purposes for which fair use was explicitly applicable. In this case, Congress basically codified the fair use doctrine as it was being used at the time by the courts. It could be considered an expression of approval for the existing interpretation of the time and a desire to prevent drift in that analysis.
Sometimes In general, intentionally false speech gets less protection than other speech, and in some cases it is unprotected. The classic example of speech that is unprotected is "Falsely shouting FIRE in a crowded theater". Note that this is both intentionally false and highly likely to be seriously harmful to multiple uninvolved people. On the other hand, the classic case of New York Times vs Sullivan said that, at least when the subjects were public officials (later broadened to public figures) it was not enough to prove simple falsehood in a defamation case, one must prove "actual malice" (an unfortunate term) which in this context means statements that are either knowingly false or are made with reckless disregard for the truth. The court in that case said, in effect, that if a newspaper had to be sure that its every statement could be proved true in every detail, it would be unwilling to vigorously report on matters of significant public concern (this is a paraphrase, I'll add a quote later). Opinions are considered legally not to be either false or true. "President Jone is the worst leader the US has ever had" Is a statement of opinion, and so is not defamation. Moreover, in political contexts, attempts to punish false statements of fact that are not defamatory have been held unconstitutional. One example was the "Stolen Valor" act, which punished falsely claiming to have been awarded a medal by the US armed forces. This was held to be against the First Amendment. In general, regulation of speech (which here includes writing and other forms of communication) must be fairly narrowly drawn and must have good reasons behind them to survive a court challenge. How much so depends on the nature of the law, and particularly whether it is "content-neutral" or not. Details and cites to come when i have a little more time.
The essence of the order's argument is that in editing user generated content outside of the provisions in one section of the Communications Decency Act (CDA), the platform necessarily excludes itself from the protections afforded by another section of the CDA. The EFF says: ... Even though neither the statute nor court opinions that interpret it mush these two Section 230 provisions together, the order asks the Federal Communications Commission to start a rulemaking and consider linking the two provision's liability shields. The order asks the FCC to consider whether a finding that a platform failed to act in "good faith" under subsection (c)(2) also disqualifies the platform from claiming immunity under section (c)(1). In short, the order tasks government agencies with defining “good faith” and eventually deciding whether any platform’s decision to edit, remove, or otherwise moderate user-generated content meets it, upon pain of losing access to all of Section 230's protections. ... The order also argues that the very popular social media platforms such as Twitter and Facebook are the functional equivalent of the public square, not merely private providers protected by the First Amendment, and therefore should not be able to edit user generated content. The EFF article quotes from a Supreme Court judgment that says "merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints." Recommend the full article: https://www.eff.org/deeplinks/2020/05/trump-executive-order-misreads-key-law-promoting-free-expression-online-and See also Techdirt's article, The Two Things To Understand About Trump's Executive Order On Social Media: (1) It's A Distraction (2) It's Legally Meaningless. [edit] Eugene Volokh wrote a good explainer with background. Regarding the social-media-platforms-become-state-actors argument, see this recent D.C. Circuit judgment on appeal (Freedom Watch v Google etc): Freedom Watch's First Amendment claim fails because it does not adequately allege that the Platforms can violate the First Amendment. In general, the First Amendment 'prohibits only governmental abridgment of speech.' Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). Freedom Watch contends that, because the Platforms provide an important forum for speech, they are engaged in state action. But, under Halleck, 'a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.' ... This was a group that alleged Google, Facebook, Twitter and Apple "conspired to suppress conservative political views ... its audience and revenues and succeeded in reducing each". Very similar to Trump's complaints. And "this idea that Section 230 requires sites to moderate in a neutral fashion has become very popular even though it has no basis in reality or law" - Ken White (aka Popehat) in another good explainer and podcast about this.
Is this illegal? No, subject to some possible narrow exceptions discussed below. Do the social media companies have a duty under the First Amendment to not censor users? No. Indeed, usually, there is greater liability exposure for failing to censor content, for example, by failing to honor a "take down notice" under Title II of the Digital Millennium Copyright Act based upon an alleged copyright violation, or for failure to censor content related to potential sex trafficking. The First Amendment to the United State Constitution (which applies to state and local government via the 14th Amendment to the United States Constitution) is a limitation on the power of governmental actors only. This said, some state constitutions, such as California's, provide free speech protections not just from government action, but also in spaces that are privately owned, but are open to the public and constitute de facto public forums. The authority of California to expand its state constitutional protections to these private settings was confirmed by the U.S. Supreme Court in the case Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). It is conceivable that these doctrines could be expanded to public Internet forums in the case of California based social media companies (e.g., Facebook has its headquarters in Menlo Park, California; so does its sister platform Instagram; LinkedIn is based in Sunnyvale, California; and Google is based in Mountain View, California). There are also laws that limit how employers can regulate employee speech in a labor relations context, although most of them don't have constitutional dimensions. It is conceivable that these doctrines could limit social media platform's authority to limit some kinds of speech by their own employees, or in situations where the social media platform looked like it was acting as a mere agent of some other employer controlled by that employer for all practical purposes. There has also been litigation related to free speech on social media regarding the rights of governmental account holders to exercise the same kinds of account management that is available to other users, implicating the First Amendment right to petition the government. The social media platform operator is not itself the primary target in these cases, but if it simply implements its terms of service neutrally with respect to all account holders, it could be facilitating a constitutional violation by its governmental account holders and could conceivably be held liable for aiding and abetting that violation of the law by a governmental account holder (in the context of a lawsuit for money damages this is a special subtype of something called a civil conspiracy).
In a democratic country, they cannot be sued successfully. Freedom of speech is for the citizens, not the government. And it is a company doing the banning, not the government. So the situation is totally different in two significant ways. (That assumes laws not too different from the USA. Obviously a country might have laws that make it illegal for companies not to publish what a political party says).
This would require a constitutional amendment (overriding the First Amendment), which can be done in two ways. Congress can write an amendment and submit it to the states; or the states can call for a convention. None of these methods can be implemented by any number of courts.
There are lots of times when it's illegal to lie. Among them: impersonating a federal agent (18 USC 912) lying to a federal agent (18 USC 1001); health care fraud (18 USC 1035 and 1347); mail fraud (18 USC 1341); wire fraud (18 USC 1343); perjury (18 USC 1623); False Claims Act (31 USC 3729-33); and libel and slander (common law). But you're right that these laws are all at least theoretically in conflict with the First Amendment rule that &quot;Congress shall make no law ... abridging the freedom of speech.&quot; So why are some of them upheld against a First Amendment challenge while others are struck down? The Supreme Court explained its rationale a few years ago in U.S. v. Alvarez, 567 U.S. 709 (2012). That case dealt with a federal statute making it illegal to falsely claim that you had won any medal that Congress had authorized to be awarded to the armed forces. The federal government said that false speech had no value and therefore was not protected, pointing to cases upholding laws like the ones listed above where the Court had used similar descriptions. But the Court rejected that argument, noting that the cases where it has upheld laws limiting false speech dealt with &quot;defamation, fraud, or some other legally cognizable harm associated with a false statement&quot;: In those decisions the falsity of the speech at issue was not irrelevant to our analysis, but neither was it determinative. The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection. Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more. Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood. So that sort of gives you an organizing principle. It's not really a philosophical distinction, and meeting it doesn't mean that the lie is illegal, just that it may be outlawed. tl;dr: The First Amendment usually does not protect false statements when they are: made knowingly; and made with some corrupt purpose.