The Importance of the Public Square
Why the First Amendment exists, and why "private" censorship is antithetical to free speech
I have spoken repeatedly about the importance of the Public Square and the rejection of censorship by both "private" companies and formal States. I have also began discussing what I believe is a more substantive notion of "freedom" than the incoherent Liberal notions. There is much to expand on there, but I believe the importance of the Public Square is a good starting point to explore. I want to explain why I believe equal access to the Public Square is so important to the proper functioning of society, and then I wish to explain in another way why the large social media and e-commerce platforms function as an integral part of the Public Square. First, let us attempt to make sense of the historical conditions that lead to the development of the First Amendment. because an analysis of these conditions will show that the First Amendment originally did not protect "corporations exercising their supposed right to censorship," and actually explicitly banned it.
Making sense of the First Amendment
Of course, one of the kneejerk responses to "why is the First Amendment a thing" is that it allows all voices to be heard on an equal ground...theoretically, at least.
This of course does explain some of the emotional power behind the First Amendment's support, but it seems far too insufficient to explain the Founders' beliefs. Two changes in English law in the period preceding the American Revolution shaped the Founders' ideas about freedom of speech and the press and why it was so important: the parliamentary privilege of freedom of debate, and the abolition of prior censorship in England.1
The recognition of the relationship between speech and the political process was widespread in the American colonies, reflecting a historical development of the concept over time in England.
When the House of Commons was given greater responsibility for the text of laws, its members recognized a need for debate and discussion. Criticism and deliberation are vital to making sure the best laws are passed, and legislators appreciated the ability to receive feedback. Limited criticism of measures proposed by the King or his ministers was also allowed. The House of Commons, understanding the necessity of proper discussion, began punishing anyone who interfered with its functions, including its own members. Queen Elizabeth implicitly endorsed this as she was satisfied with the fact Parliament would quickly punish its members who offended her. But this practice began to beget more changes in policy, even if the Queen had not openly endorsed them. This evolved into a claim by Parliament that only they had the right to censor their own members, and that free speech within parliament was important. It would take time for this to catch on (especially during the chaos in English through the 17th century), but the seed was planted.
This mindset was not isolated to England, but spread to its American colonies as well. Prior to the American Revolution, the protection of speech was often confined to the legislative assemblies, but it was still seen as a right and fundamental value in society. The Massachusetts Declaration of Rights in 1780 had this to say2:
The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.
This value was repeated in the Articles of Confederation3 and in article one, section six of the Constitution.
But this, of course, had to be modified: "Protecting legislators from public criticism was inconsistent with the fundamental principle that ultimate political power resides in the people."4
And so, we see a massive development in the notion of "free speech": the extension of freedom of speech from legislators to individuals in the general public.
An interesting realization here is that free speech being required to maintain self-government and discussion being necessary to generate the proper policies explains in part the rejection of the power of the electorate to issue binding instructions to their political representatives (an apparent inconsistency with the concept of popular sovereignty).5
The elimination of "prior restraint" (think licenses in order to publish certain books, like The Bible) in England in the century before the passing of the First Amendment extended these ideas about free speech.6 Sir William Blackstone in his Commentaries on the Laws of England had this to say7:
The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.
Yes, that final line doing a lot of heavy lifting, but it should be noted that some of the possible consequences we talk about (censorship/de-platforming) is precluded by the earlier part of his quote, that every free man has an undoubted right to lay what sentiments he pleases before the public. We will explain later how the major social media and e-commerce platforms constitute platforms that are effectively "public."
The growth of mass media prior to the Revolution coincided with the usage of the media as a bludgeon for politicians to use against each other (and, at times, against the public)8:
As the mass media grew, it became a vehicle for both the government and its opponents. The political opposition, particularly during the ministry of Robert Walpole, began to claim that public criticism of government was both a right and a duty. The colonists, growing increasingly disenchanted with transoceanic rule, paid particular attention to the writings of these critics.9
In fact, this sentiment played a major role in how Madison created the original form of the guarantee of freedom of speech and of the press that he proposed10:
"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty shall be inviolable.”
One final interesting point to consider as we move forward: there is a question of who is allowed to censure speech in the Public Square, and it seems that, there is a rationale to argue that only Congress can censure speech that isn't already unlawful.11 While this interpretation is certainly disputed, it is an interesting idea to keep in mind as we move forward with this piece:
When the political process is broadened to include the whole of the population, the people themselves by analogy should set the limits. In the federal system, it follows that only Congress can set national limits on speech.
At first glance, the proposition that only Congress can control speech seems directly contrary to the language of the first amendment which literally restricts only Congress and not the other branches of government from abridging freedom of speech. A little history, however, sheds light on this apparent paradox. The clause reflects the view that under the Constitution only the whole body of the people acting through Congress even arguably has power to restrict speech.
Many of the Supreme Court's first amendment ancillary doctrines are attempts to be certain that the legislature has decided that the speech restriction is necessary. For example, a canon of statutory interpretation is that statutes, where possible, should be construed to avoid application that would restrict expression.12 Similarly, the Court often invalidates administrative action that impairs speech by construing narrowly the legislature's delegation of power to the administrator.13 Although these practices have been defended as part of a general policy of avoiding unnecessary constitutional decisions,14 they may be equally justified on the basis of the historic insistence that only Congress has power to restrict speech - an assumption with roots in the legislative privilege of debate.
Further, albeit tenuous, support for the proposition that speech restrictions are imposed appropriately only by one's peers lies in the guarantees to a jury trial in the sixth and seventh amendments to the Constitution. Not only are laws restricting speech to be made by Congress, a body representative of the speaker's peers, but their enforcement also involves a decision by those peers. The people as a whole cannot act as a tribunal, but they can decide particular cases through a representative body - the jury. From Zenger's trial until the Revolution, the refusal of juries to convict the critics of royal government had been an effective protection for the colonists.15 Although the demand for a right to jury trial had many antecedents besides the controversies over free speech, the idea that the jury should determine whether the matter was libelous as well as the fact of publication had connections, however loose, with the privileges of Parliament
In conclusion, the sentiments behind the First Amendment included a recognition of the importance of debate and discussion to generate optimal policies (first in legislative assemblies, and then extended to the public at large) and for the media to act as a critic of government. The elimination of "prior restraints" on publication was motivated by the belief that every individual should have the right to lay their opinions before the public for the public's judgment and consideration; that the right to discuss ideas with the public and influence discourse should not be the privilege of the select few, but rather the right of all members of society.
The Public Square as Commons (vs. Safe Space)
Before moving on to our analysis of the Physical and Virtual Public Squares, I would like to explain another reason why I believe the Public Square is so important, and why equal access to the Public Square is so important.
The Public Square acts as a kind of Commons, distinct from Safe Spaces. A Safe Space is, putting it simply, a place where an individual feels fully comfortable in expressing themselves and is accepted for who they are. A properly functioning family, a group of close friends, etc. These are arguably the most natural versions of these Safe Spaces (the artificially constructed "safe spaces" on college campuses can be understood as a misguided attempt to recreate genuine Safe Spaces via bureaucratic fiat).
While a Safe Space allows for belonging and a respite from anxiety, the Commons is equally necessary as a place for challenge and growth. If we care about people developing their own talents, finding their own passions, etc. we must aim to facilitate and cultivate these 'Safe Space'-Commons dualities at different scales and in different places throughout society. We need people to have places where they are accepted and places where they are pushed to grow. Of course, challenges and growth occur within Safe Spaces as well (your parents should help guide your moral development, and the best/closest friends are the ones most willing and able to call you out when you f*ck up). But the Commons removes predictability. It brings you into contact with networks and ideas you may never have been aware of before. It is growth outside of the echo chamber. What the Commons allows is for ideas developed in different Safe Spaces to meet and be exchanged, modified, critiqued, and developed. It even allows for new networks, and by extension new Safe Spaces, to form.
In this sense, I consider the Public Square (and more particularly, equal access to the Public Square) to be extremely important to a properly functioning society. We are meant to exist in a web of relationships, each with certain responsibilities, and that web can only be maintained when we have places for both safety and for challenge/growth.
The Physical and Virtual Public Squares
I have argued that the dominant social media and e-commerce companies are in effect the Virtual Public Square, distinct from (but analogous to) the Physical Public Square. These companies operate as a virtual Agora where individuals may hock their wares and discuss the happenings of the day. Size matters with regards to censorship because of the prevalence of options. Certainly if you have 100 different merchants in a square, one may ask you to stop discussing last night's escapades so close to his "storefront," but then you can simply walk elsewhere. Presumably there will be some merchants who will be fine with you discussing whatever you like. But when the entire Agora is dominated by a handful of merchants who all appear to follow the same ideology, it appears highly difficult to make a serious case that either 1) if one merchant kicks you out you can simply go find another one, or 2) that this handful of merchants should get to decide who has access to the public square at all.
While yes, the First Amendment is generally understood to not require individuals to tuen over their property to those wishing to communicate about a particular topic (see Garner v Louisiana16), what is interesting is that plenty of Supreme Court cases have noted that if private property is sufficiently akin to public property, private owners may not forbid expression on it.
Marsh v. Alabama17:
In Marsh v. Alabama,1494 the Court held that the private owner of a company town could not forbid distribution of religious materials by a Jehovah’s Witness on a street in the town’s business district. The town, wholly owned by a private corporation, had all the attributes of any American municipality, aside from its ownership, and was functionally like any other town. In those circumstances, the Court reasoned, “the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”1495
Food Employees Union v. Logan Valley Plaza18:
“[T]he State,” said Justice Marshall, “may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.
Now, there are limits to this. The Logan Valley Plaza case19 left open the question that the defendant's property rights might be able to "justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put."20 Four years later, in Lloyd Corp v. Tanner21, the Supreme Court answered that question by saying that property owners could legally exclude people if their protesting was on property not dedicated to public use AND the protesting (or other form of speech) was not relevant to any activity of the quasi-public property22:
Several members of an antiwar group had attempted to distribute leaflets on the mall of a large shopping center, calling on the public to attend a protest meeting. Center guards invoked a trespass law against them, and the Court held that they could rightfully be excluded. The center had not dedicated its property to a public use, the Court said; rather, it had invited the public in specifically to carry on business with those stores located in the center. Plaintiffs’ leafleting, not directed to any store or to the customers qua customers of any of the stores, was unrelated to any activity in the center. Unlike the situation in Logan Valley Plaza, there were reasonable alternatives by which plaintiffs could reach those who used the center. Thus, in the absence of a relationship between the purpose of the expressive activity and the business of the shopping center, the property rights of the center owner will overbalance the expressive rights to persons who would use their property to communicate.
I believe it should be reasonably clear that our modern social media and e-commerce companies dominate the boundaries of conversation. They ARE the Virtual Agora, and are just as (if not even more) important as the Physical Agora (made even more clear by the recent coronavirus crisis). What is the purpose of these platforms? Their purposes are, put very simply, to connect individuals (for social media) and to connect buyers and sellers (for e-commerce). In that sense, any form of speech and any good or service that isn't illegal should be allowed. These platforms (note the use of that word) are quasi-public property. Being de-platformed from the major social media companies means effectively being banished from the Public Square (especially when these companies go so far as to prevent the sharing of articles written about you). This is completely antithetical to the First Amendment, and cannot be justified via "go find a different platform to talk on." Exit is not an excuse, as we saw before.
So, if we take the First Amendment to be meaningful and/or you consider my point about the importance of the Public Square as Commons to be compelling, then we must understand that these companies are the Virtual Agora, and that access to them must not be reserved for the privileged few, but allowed for all members of the public, so long as they do not act in an expressly illegal manner on them.
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Sources and References
David S. Bogen, THE ORIGINS OF FREEDOM OF SPEECH AND PRESS, Maryland Law Review (1983), 430-433.
Declaration of Rights para. XXI (Mass. 1780), reprinted in I B. SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY (1971), 343.
ARTICLES OF CONFEDERATION, art. 5, cl. 5.
David S. Bogen, THE ORIGINS OF FREEDOM OF SPEECH AND PRESS, Maryland Law Review (1983), 434.
W. BLACKSTONE, supra note 51, at 152 (emphasis in original).
David S. Boden, THE ORIGINS OF FREEDOM OF SPEECH AND PRESS, Maryland Law Review (1983), 445.
B. BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1967).
1 ANNALS OF CONG., supra note 32, at 434.
David S. Boden, THE ORIGINS OF FREEDOM OF SPEECH AND PRESS, Maryland Law Review (1983), 437-439.
Bogen, First Amendment Ancillary Doctrines, 37 MD. L. REv. 679 (1978), 696-701.
e.g., Schneider v. Smith, 390 U.S. 17 (1968), 26-27.
Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), 341-56 (Brandeis, J., concurring).
L. LEvY, LEGACY OF SUPPRESSION (1960), 126-75.
Garner v. Louisiana, 368 U.S. 157, 185, 201–07 (1961), (Justice Harlan, concurring).
Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968).
Ibid. at 320 n.9.
Lloyd Corp. v. Tanner, 407 U.S. 551 (1972).