In December 1943, a woman named Grace Marsh stood outside the post office in Chickasaw, Alabama, distributing religious literature. Chickasaw, a company town privately owned by the Gulf Shipbuilding Corp., arrested Ms. Marsh, a Jehovah’s Witness, on trespassing charges and her case went to the U.S. Supreme Court pitting private property rights against the First and Fourteenth Amendments.
Lower courts affirmed the corporation’s right to police constitutionally-protected activities on private land, but the Supreme Court reversed this, arguing the public’s constitutional freedoms supersede the owner’s rights if that owner sufficiently opens up his property to the public.
The Marsh decision has renewed interest among the increasingly demoralized proponents of online free speech. After all, a well-funded litigant arguing before the Supreme Court appears the most equitable compromise in an environment where the debate on how to reign in Silicon Valley has become trifling and enfeebled, paralyzed in an ideological stalemate between two highly unpalatable extremes: the intellectually lazy libertarians who argue “start your own Twitter,” to those calling for regulation of social media companies as public utilities.
But First Amendment lawyer Ron Coleman says don’t count on a SCOTUS decision anytime soon. “What we’re missing is a political moment. Courts are not deft to political moments. Anyone who thinks so is not familiar with how the New Deal became reality,” Mr. Coleman, who is representing Twitter-exile Gavin McInnes in a defamation suit against the Southern Poverty Law Center, says. “But courts are not going to step-up until there is movement from the other branches of government. The legislative branch and the executive branch are not doing a thing. And until they do, the courts are not going to be the answer.”
Supreme Court Justice Sonia Sotomayor famously said, “the Court of Appeals is where policy is made.” While the statement may have been a gaffe, she illuminated how the left advances its agenda, like gay marriage or, today, legalized marijuana. There was no political moment for gay marriage — even Hillary Clinton and Barack Obama’s wouldn’t touch it — until blue state governments circumvented Washington, voters and the courts to pass legalization, beginning with Massachusetts in 2004. When one state passes controversial legislation, such as gay marriage, it’s as though all 50 have, as an inevitable domino effect of like-minded jurisdictions results in a court challenge.
“Isn’t there one red state out there that can pass a statute making it unlawful for a coherently-defined category of social media to deprive a user of his account on arbitrary or capricious grounds and requires bans or other adverse action to be appealable?” Mr. Coleman asks.
One Florida lawmaker is attempting to do just that. On Friday, Republican state Sen. Joe Gruters introduced the Stop Social Media Censorship Act, which proposes a minimum $75,000 penalty on social media giants if they censor or delete a user’s political or religious speech. Large social media websites will be prohibited “from using hate speech as a defense,” as hate speech is not recognized by the First Amendment. The bill does not protect calls for violence or obscene, pornographic, or criminal content.
“It should be done on a state-by-state basis,” Mr. Gruters tells me. “When you have these social media companies that are interwoven in our society, it’s like speaking on a street corner. It’s so part of your everyday life, by taking away someone’s ability to communicate, even if you don’t agree with them, it does more harm than good.”
The bill is awaiting in committee and Mr. Gruters, who describes himself as center-right and is supporting and anti-LGBT discrimination bill, is optimistic, despite already getting smeared as an advocate for fringe extremists.
“If someone says hateful or mean-spirited things, I think their own words will do them in. They’ll eventually pay the price for those harmful things with public feedback and amongst their peers. But to ban them completely is the wrong path to go down,” he says. “It’s very easy to block or mute someone if you don’t want to see their information.”
Despite Silicon Valley’s unabashed election-meddling and left-wing politicking, technology companies do abide by the speech laws in places they do business. Conservative pundit Michelle Malkin learned firsthand when, last week, Ms. Malkin, an American-born citizen residing in the United States, received a bizarre message from Twitter that one of her posts violated Pakistan’s blasphemy laws. Last year, Google capitulated to the Muslim government of Indonesia and removed over 70 gay-themed apps from its Play Store. Tech giants scramble to keep up with the European Union’s ever-evolving anti-speech codes, and they’re more than happy to completely hand the keys over to China in order to do business there. If Pakistan can strong-arm Twitter to respect its speech restrictions, there’s no reason the United States can’t enforce its own speech freedoms.
Mr. Coleman says the stakes are high and may be up to mavericks like Mr. Gruters. “A rotten rough of adopted, in-house, court conservatives are absolutely hands-off on this issue because their legitimacy is premised on them being affiliated with legacy names and legacy media,” he says. “This is going to be not only the death knell of the Republican party, but of democracy, because the Democrat party is absolutely embracing fascism.”
• Chadwick Moore is a New York-based journalist and political commentator focusing on trade, free speech and media accountability. He is currently working on his first book.