By Bill Cotterell
To swipe a slogan from a long-ago Oldsmobile advertisement, this is not your father’s First Amendment — or your great, great, ever-so-great grandfather’s.
Florida is in the middle of an epic legal battle over concepts of free speech, press freedom and unimpeded commerce. It’s a clash between internet publishers, who want the government to leave them alone, and Republican leaders who insist that social media platforms are too powerful to be run by giant, faceless corporations that can — and do — impose their tastes on all of us.
Essentially, a four-hour oral argument last week at the U.S. Supreme Court was about the difference between editing and censoring.
The conservative governors of Florida and Texas persuaded their Republican-run legislatures to limit how social-media companies can curate content. The feeling was that, in the guise of rooting out hate speech and misinformation, a bunch of Silicon Valley liberals stifle conservative commentary. Exhibit A was the “de-platforming” of former President Donald Trump after his supporters stormed the Capitol on Jan. 6, 2021.
A coalition of very rich tech giants, through two industry organizations called NetChoice and the Computer & Communications Industry Association, got an injunction against the Florida law, claiming a First Amendment right to moderate what is published on sites like Facebook, X and YouTube.
The organizations argued that no advertiser, serious commentator or reader wants to share a social-media site with some lunatic raving that the earth is flat, the moon landings were fake or the Jan. 6 rioters were just visiting the U.S. Capitol.
News reports indicated at least four justices seemed skeptical of the Florida and Texas laws. But it’s also very possible that, rather than ruling late this summer, the court will want more of a record in the cases and punt them back to lower courts.
But it’s time to reinterpret the First Amendment. That scares the daylights out of conservatives and liberals alike, but can the age of artificial intelligence and 24/7 messaging be governed by the best minds of the 18th century?
When the nation’s founders made free speech the very first amendment added to the Constitution, a printing press was a big contraption that might take a day or a week to crank out paper pages with type set by hand. And everyone knew the local printer.
Now, messages can be hammered home on a keyboard at light speed — including fake images aimed at very specific audiences — and you don’t know who puts it out, or why.
Thomas Jefferson, etc., dealt with a different world back then. We’re not a frontier continent with European powers vying for influence anymore.
Press law has been much in the political news recently. Trump said he’d like to “open up” libel laws to make it easier to sue media companies, but he didn’t do it. Sarah Palin unsuccessfully sued The New York Times over an advertisement. Fox settled for $787 million last year for lying about a voting systems company. In Florida, a move to make it easier to sue for defamation has fizzled in this year’s legislative session, but it will be back year after year.
Our state lost a landmark media case in the nation’s highest court a half-century ago. A House candidate sued the Miami Herald under a 1913 “Right to Reply” law, which required newspapers to print rebuttal editorials from political candidates they did not endorse. The Supreme Court unanimously held that — just as government can’t forbid ideas from being spoken or published — it may not force the media to say something they don’t want.
Chief Justice Warren Burger wrote that “press responsibility is not mandated by the Constitution and … cannot be legislated.”
Well, maybe press responsibility can’t be legislated, but that doesn’t mean we shouldn’t keep trying, while allowing wide latitude for a free-wheeling public debate of issues and events.
Legitimate news sources like The New York Times or NBC have standards of accuracy and fairness (although we all miss the mark sometimes), yet much of the internet is a free-fire zone with no pretense of truth or balance.
Burger’s idea of “press responsibility” wouldn’t require a First Amendment rewrite. The big social-media companies could accommodate all views and still bar the offensive stuff, just like they already keep porn or threats of violence off their sites. It would be a never-ending argument, with some people feeling unfairly shut out and others objecting to things they don’t like.
But isn’t that what social media use is all about — a series of big, unending arguments?
Bill Cotterell is a retired capitol reporter for United Press International and the Tallahassee Democrat. He can be reached at [email protected].
