Is Platform Access a Civil Right?

Fenster writes:

In the newly-resuscitated online journal Human Events, Will Chamberlain asserts that platform access is a civil right, and makes a modest proposal regarding how government can play a positive role in furthering those rights and the benefits he believes will flow from such action.

Platform access is a civil right.

You should now have the same right to speak on Facebook, Twitter, and Instagram that you do in a public park.

This is not the current state of the law. The Supreme Court has made it clear that the First Amendment does not prevent private actors from restricting speech, except in rare circumstances. And no current legislation recognizes platform access as a civil right.

At this early stage in Chamberlain’s argument I was having my doubts.  I tend to instinctively recoil at arguments made in “rights” terms.  Many goods that government may choose to provide–or not–are often championed as being necessary to further this or that “right” (see, for instance, this list of 3.8 million Google hits for the phrase “right to higher education”).

My skepticism does not arise from a right-wing aversion to government.  In fact it arises from something of the opposite: I generally feel that subject to self-made boundaries like constitutional ones government is sovereign and ought to be able to do what it likes in furtherance of the public interest.

Do we choose to provide free higher education to all?  I may not agree with that policy prescription (and I do not) but if we choose to do so–fine, let us do so.  But that is a choice not an instance of our having to follow the demands of a newly-discovered “right” to higher education.  And in my own view of the world, which partakes of New England pragmatism, this would be a choice even if proponents,  in the securing of some invented right, relied on the Platonic version.

But there is more than one way of making an argument based on rights.  The weaker way, per the above, presumes a commandment of some sort based on a Writ of Heaven, a newly-found emanation/penumbra from the Constitution or just passion and interest passing itself off as self-evident compelled virtue.

By contrast the stronger way accepts that humans are in the main responsible for figuring out how they wish to order the world in which they live, and that the establishment of rights—by humans, by consent—is a perfectly acceptable way to do that.

Yes, the constellation of rights we take to be American are rooted in a Constitutional vision that was in its own way influenced by natural rights arguments.  But just as courts should not be overly active in extending rights via emanations and penumbras so too should legislators refrain from a too-zealous assertion that some abstract non-existent right compels a given outcome.

Perhaps you think my two paths represent a distinction without a difference.  Granted, a right asserted to have prior existence may morph gradually into a right that we invent because we favor the outcome it may secure.  But there is a distinction, I believe, and a valid one, when one considers the process of government.

We take ourselves to be a republic.  That is a form of self-government, one that relies on subtle virtues that appear in short supply.  My distinction turns more on those virtues than on the nature of the right itself.

Haven’t we already lost too many habits of self-government?  The assertion that we are compelled to an outcome because of a right risks more self-enervation when we plainly need less.  The growth of the administrative state is in large part a result of the legislative branch losing its nerve.  Better we should have lawmakers willing to play the difficult the Constitution has dealt them, and to face issues squarely.

The good news relative to the article is that as Chamberlain goes on it becomes apparent that he is advancing his rights-based argument more on the latter approach than the former one.  He does not assert that we are compelled to act on abstract principle.  The gist of his argument is that government has an obligation to create a world that its citizens find satisfactory, and that the nation will be better off by extending free speech into the ostensibly private realms of Facebook, Twitter and Instagram.

It is true that he uses something of the emanations and penumbra approach: the new public forum is not the same as the old public square but there is a more than a hint of it in there.  True, the First Amendment may not apply to Facebook.  But would it be better if we opted to extend its general embrace of free speech by law in this particular case at this particular time?  His answer is yes.

Free Speech is more than the First Amendment, which only protects you from the government infringing on your rights. In 2019, that is woefully inadequate. Access to the large social media platforms – Facebook, Twitter, and Instagram – is a prerequisite to meaningful free speech in 2019.

While jurists should be reluctant to extend rights that plainly are not in the Constitution there is nothing wrong with legislation that reasons from Constitutional principles in making arguments for measures where values found in the Constitution are at stake.  That is in fact what legislatures should do.

So Chamberlain makes a modest proposal—an honestly modest one, not of the Swiftian variety.

Conservatives should focus on passing legislation – at BOTH the state and federal levels – that protects all citizens’ access to large social media platforms on civil rights grounds. Access should be forfeitable only if one engages in unlawful speech on a platform.

If a large social media company wrongfully denies you access to or removes you from their platform or, you should be able to walk into court, get an injunction against the company that forces them to restore your account, and be awarded substantial statutory damages.

Under this view, government would not attempt to set itself up as a censor or anti-censor of actual content.  The path would be simpler than that: extend to internet platforms by legislation the free speech requirements set forth in the Constitution relative to public actors.

Not all conservatives like government playing a role.  A conservative Washington Examiner columnist grouses as follows:

what do you do when the GOP loses control of the White House & Congress? That day will come, even if only temporarily. When it does, do you want President AOC appointing the regulators?

Chamberlain rightly dismisses that as facile if government’s role is limited to the protection of speech, not regulating it directly.  Courts, not regulators, would adjudicate complaints relative to platform denial, and would use whatever standards the legislation laid out.  That could be as straightforward as a mandate to follow Constitutional interpretation as to what constitutes free speech in a First Amendment context.

Private property rights are great. But that does not mean that we, as a society, had to let private restaurant owners and private hotel managers turn away customers because they were black. We didn’t have to accept a world in which black people had to defecate on the side of the road because they weren’t allowed to use a privately-owned restroom.

We, as a society, do not have to allow private companies to violate Americans’ civil rights.

Chamberlain’s idea that the new public square requires a reconsideration of the scope of free speech is not a new one.  Framing it clearly in policy terms amenable to immediate legislative consideration is somewhat new, and as far as I am concerned let’s have more of it.

 

About Fenster

Gainfully employed for thirty years, including as one of those high paid college administrators faculty complain about. Earned Ph.D. late in life and converted to the faculty side. Those damn administrators are ruining everything.
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