Beyond the First Amendment: You're probably confused about free speech

“Kicking someone off Twitter isn't keeping with the spirit of freedom of speech," said one expert

Published August 31, 2016 6:02PM (EDT)

Often when people talk about censorship or free speech infringement, someone will argue that no violation has occurred unless an action's been taken by the government. That's because the First Amendment specifies a violation of freedom of speech that's tied to government action.
After all, the First Amendment reads, “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.”
But this type of argument is missing a major point. “People will say free speech only extends to an action of the government, and that's not right,” Greg Lukianoff, president and CEO of the Foundation for Individual Rights in Education, told Salon.  
“Freedom of speech is a much bigger, bolder, braver idea,” he said. “It's much more expansive, and it's been around longer than the First Amendment.”
According to Lukianoff, there are many ways that free speech can be violated and for censorship to exist that do not involve the government. “Kicking someone off Twitter isn't keeping with the spirit of freedom of speech,” Lukianoff said, but it's not a violation of the First Amendment.
Yet Twitter or Facebook's censoring certain posts or kicking people off of their platforms does create a possibly concerning situation. As Jeffrey Rosen explained in a 2013 New Republic article, these companies now control a large part of what has long been referred to as the public space — a place where the world can exchange ideas. When companies have such control, their actions matter.
Marijuana companies and organizations have complained that their pages have been removed from Facebook without explanation or that they’re banned from advertising on Facebook or Google. Major libertarian groups also recently complained about pages being suspended on Facebook for no apparent reason. These social media companies aren’t simply preventing harassment, their reach is much broader.
“There's never been a Supreme Court case that said that there's a First Amendment violation when an entirely private entity regulates speech,” Ronald Collins, a law professor at the University of Washington, told Salon. He explained you can have a “denial of free speech that doesn't involve the government” or a “censorship that doesn't involve the government,” but you can't have a First Amendment violation that doesn't involve the government.
If the government is involved with a private entity to a significant degree, then the First Amendment can become an issue. For example, a private prison that has state oversight and receives government funds can be subject to the rules of the Constitution. While private colleges are not typically subject to the First Amendment, the state of California has a law requiring them to follow it.
Public colleges are always subject to the First Amendment. “If [a public university] had a speech code that said no student or faculty member can engage in any speech that offends any member of the college community, that would clearly be vague under the First Amendment, over-broad under the First Amendment, clearly unconstitutional,” Collins said.
The University of California system has been broadly criticized for trying to limit speech too much. Last year, the system encouraged faculty and students to avoid saying things like “America is a melting pot” or “Why are you so quiet?” to avoid offending any vulnerable groups. (Who? I’m not sure.) The school has also released a speech code that bans “derogatory language reflecting stereotypes or prejudice,” which many have argued is unconstitutional. 
“One of the reasons we have the First Amendment is to protect speech that offends us,” Collins said. “If it didn't offend, why would we need it?”
The University of Chicago recently received quite a bit of attention when its dean of students sent a letter to incoming freshman saying the college would not support trigger warnings, cancel controversial speakers or provide safe spaces. It's clear the pressure to do these things has gotten to the point where some colleges feel the need to push back. Considering deans have been forced to resign over not championing PC values, it's no laughing matter for some people in academia.
Furthermore, there are ways the First Amendment can be applied that don't specifically concern laws being made that affect speech. In the spirit of protecting First Amendment rights, the government must prevent speech from being silenced when that is possible.
The government has to prevent an angry mob from preventing a person from exercising his or her First Amendment rights. “When it comes to preventing mob rule, the main function of the government is to make sure that people with unpopular views aren't silenced,” Lukianoff said. “You can have mob censorship.”
Lukianoff has written about an old concept called the “heckler's veto,” which is when speech is silenced to prevent a violent response from others.
“Once you set the precedent that speech will be censored if it offends people who respond violently to that speech, you guarantee that more people will respond violently on a wider variety of issues,” Lukianoff wrote for The Huffington Post last year.
There are many exceptions to the First Amendment, as well. “There are lots of reasons you can punish someone for what they've said,” Lukianoff said. “If it's a threat, if it's extortion, if it fits the definition of harassment, even, if it's libelous. These are all things that the First Amendment recognizes, but it can't simply be because they express an opinion that offends you.”
All of this is to say that if someone is arguing that he or she is not violating free speech when attempting to silence an unpopular opinion or if this person says that something was not technically censored because the government wasn't involved, he or she does not know what he or she is talking about.
It is important that we resist the urge to silence speech that makes us uncomfortable because hearing such speech helps us know what our fellow citizens think and that is valuable. When you limit the conversation, it ceases to advance.
When a college creates a minefield of rules for what is allowed to be said, genuine conversation and understanding is discouraged. When it adopts sweeping policies about what's considered offensive and what's allowed, the foundation for true freedom of expression is chipped away at. There can be no diverse, thought-provoking discussion inside a vacuum.

By Thor Benson

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