- - Wednesday, October 25, 2017

One of the most common misconceptions about the First Amendment is that it applies to the actions of private individuals and businesses.

The First Amendment exists to protect you from government censorship and/or punishment of your speech.

If a private school suspends you for criticizing one of its policies, or a private business fires you for expressing your political views, or a private media company refuses to publish your opinion, the First Amendment will not help you.

Or, to draw on some recent events for examples: If Google fires you for writing a controversial memo criticizing its diversity programs, or a hot dog chain encourages you to resign after learning that you attended a white supremacist rally, or GoDaddy refuses to provide its web-hosting services to your neo-Nazi website, the First Amendment will not help you.

Depending on your specific circumstances, there may be some other area of the law where you can find recourse, like contract law or labor law. You just won’t find it in the Constitution.

Alright. You get it. Private individuals and businesses can censor or punish speech all they want, and it’s not unconstitutional.

But is it right?

There’s no easy answer here. (Which is weird: I always imagined that any moral argument involving Nazis would have an easy answer. And be hypothetical.)

It might be legal to fire someone for writing and sharing an opinion, revealing their political beliefs, or exercising their freedom of assembly, but it’s hard to deny that these (incredibly public) terminations will have a chilling effect on people’s willingness to express controversial thoughts.

A common response here is that freedom of speech doesn’t mean freedom from consequences. True, but something about this argument has always made me uneasy.

Yes, as private actors, we have the ability to hold people accountable for what they say, and we do it all the time, with boycotts and Twitter campaigns and the like. We can even make a credible argument that imposing consequences on literal Nazis is the moral thing to do, but let’s recognize it for what it is: punishing someone for expressing thoughts that we don’t like, in the hopes that they will eventually stop expressing those thoughts.

And while I think I could live peacefully in a world where no one ever “sieg heiled” again, using this tactic to get there is discomfiting, for reasons that Eli Massey aptly summed up in his article, “What Does Free Speech Require?”:

“If we continue to advance an agenda that privileges our particular worldview over universal free speech, it won’t be long before our own tactics are turned on us as a cudgel. (The last words you may hear as the fascists pummel you to death are: “freedom of speech doesn’t mean that speech has no consequences.”)

Blackballing people for their beliefs can turn ugly quickly (just Google “McCarthyism.”) On the other hand, what’s the alternative? Would it be less ugly to require employers to retain employees whose beliefs alienate customers and co-workers? Or to force a business to provide its services to a client it finds repugnant? Does it make a difference if you’re the only business that offers this particular service? Or if all the businesses that offer this service refuse to provide it?

I cheered when GoDaddy booted the Daily Stormer website from its hosting service; I was amused when it was turned away by several other companies. But when they were ousted by a shady-sounding Russian domain, I started to get philosophical. What happens when an idea can’t find a platform? Does it really cease to exist?

Now the site lives on the Dark Web, hidden from ordinary search engines but still present and available for anyone who really wants to find it, and it’s hard to remain amused by such an ominous and obvious metaphor.

Lata Nott is Executive Director of the First Amendment Center of the Newseum Institute.


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