Oh, You Naughty First Amendment

“Congress shall make no law,” the First Amendment begins and, in an ideal world, the Founders would have put the period after “law,” as you’re sure to agree after reading the latest assault on one of our two most important constitutional guarantees.

What we need right now is the late, great George Carlin to remind everyone that “Political correctness is America’s newest form of intolerance, and it is especially pernicious because it comes disguised as tolerance.”

“It presents itself as fairness, yet attempts to restrict and control people’s language with strict codes and rigid rules,” Carlin continued. “I’m not sure that’s the way to fight discrimination.”

But it’s the perfect way to wage political warfare on your domestic enemies, according to the American Left in general, and Columbia Law professor Tim Wu in particular.

“The First Amendment is spinning out of control,” Wu whined in a New York Times op-ed on Tuesday, and since my managing editor won’t let me reply to Wu with any of Carlin’s seven words you can’t say on television — even though all seven would be appropriate and, I promise you, artfully arranged — I’ll have to resort to reasoned analysis.

(I knew I should have ordered that second martini at lunch.)

Excuse the lengthy excerpt but this is important stuff. 

Monday’s Supreme Court decision in the two NetChoice cases greatly adds to the problem. The cases concern two state laws, one in Florida and one in Texas, that limit the ability of social media platforms to remove or moderate content. (Both laws were enacted in response to the perceived censorship of political conservatives.) While the Supreme Court remanded both cases to lower courts for further factual development, the court nonetheless went out of its way to state that the millions of algorithmic decisions made every day by social media platforms are protected by the First Amendment. It did so by blithely assuming that those algorithmic decisions are equivalent to the expressive decisions made by human editors at newspapers.

Even if one has concerns about the wisdom and questionable constitutionality of the Florida and Texas laws (as I do), the breadth of the court’s reasoning should serve as a wake-up call. The judiciary needs to realize that the First Amendment is spinning out of control.

But that’s not what these cases were about. They were about social media sites determining which perfectly legal opinions could be seen online. They were about factual information being squashed.

Recommended: Was This President Trump’s Ballsiest Play Ever?

The job of the First Amendment is to protect the individual’s right to say what he wants, to argue for his cause or against your cause in any public square — real or, these days, virtual. The First’s job isn’t to provide some kind of “balance” between an aggrieved group — of Wu’s choice, you can be sure — and so-called “corporate interests.”

“The First Amendment” in the 18th century, Wu claimed, “was a tool that helped the underdog.” And yet he would neuter it to silence dissenting voices online — the very collusion between Big Government and Big Tech that murdered the Hunter Biden laptop story to influence the 2020 election.

The disingenuousness on display requires Carlin’s bitter wit to properly eviscerate, so let me finish with a couple of thoughts that lack Carlin’s bite but that he’d surely agree with. 

The First Amendment’s job is to forbid Congress from making any law abridging, among other rights, our freedom of speech. And it’s up to the courts to knock down any attempt — by Congress or by executive fiat — to do so.

Tomorrow is America’s 248th birthday. The First Amendment is nearly as old, coming into force 233 years ago this December, and thanks to the wisdom of the Supreme Court, looks just as good today as it did in 1791.

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