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‘Constitutional Lawyer’ Senator’s Take on Online First Amendment Freedoms Doesn’t Go Over Well

Josh Hawley, a Republican who represents Missouri in the U.S. Senate and who fashions himself as “constitutional lawyer” on Twitter, has raised an interesting argument about the precise contours of the First Amendment when it comes to companies like Facebook allegedly infringing on the free speech “rights” of users. Hawley, the former Missouri Attorney General, did not — despite hailing from the “Show-Me State” — show us explicitly why or how he came up with his theory. We’ll try to, even though Hawley should have borne this burden himself.

The gravamen of Hawley’s complaint seems to be that Facebook is — in his view — restricting the “free speech” rights of its users. Or, since that makes no sense, he may be arguing that the government should not be colluding with Facebook to affect the speech rights of citizens.

“Because free speech is now illegal America?” Hawley questioned in response to reports that Facebook worked with government authorities to limit protests against executive orders.

Here is the background. Hawley’s theory came after CNN and others reported that Facebook had shut down “Facebook Events” which sought to organize protests against executive orders which seek to control the coronavirus pandemic. Groups and posts, to the contrary, “might not be removed,” CNN reported, citing a Facebook spokesperson.

The executive orders have been issued by state governors and have spurred protests in places like Texas, Michigan, and New Jersey. The orders have also resulted in lawsuits alleging they are unconstitutional.

Questions have surrounded exactly which governments gave such alleged “instructions” to Facebook to shut down online event pages. The full CNN report said Facebook made the move after “consulting with officials” in California, New Jersey and Nebraska. Spokespersons for New Jersey Gov. Phil Murphy, a Democrat, and for Nebraska Gov. Pete Ricketts, a Republican, distanced themselves from claims of state action:

Back to Hawley, whose statement has touched on a constitutional distinction which is critical. The First Amendment only prohibits the government from infringing on the right to free speech. Under the so-called “state action doctrine,” the First Amendment does not apply to private companies. Naturally, at least one person tried to sue Facebook, a private company, for violating the First Amendment, and that lawsuit in federal court in Texas went nowhere in 2018: “the First Amendment governs only governmental restrictions on speech,” the district court said. While the Supreme Court has mentioned in passing that the digital world is becoming perhaps more important to free speech than our streets and parks, the doctrine which does not extend the First Amendment to private companies still stands. (There are a few novel theories which suggest changing it.)

Hawley is surely not so obtuse as to believe Facebook must let everything fly on its site because of the First Amendment. That’s not how it works. Maybe, however, he is arguing against government interference with the platform which in turn curtails speech. In that case, the beef is between Facebook and the government in a regulatory sense and between Facebook and its users in a contractual “user agreement” sense. Facebook surely cannot be so bold as to say the government’s suggestions of restrictions  — assuming those conversations did happen — are an infringement on its users’ speech rights. Internet companies are loath to accept even a whiff of a suggestion that they are anything more than passive conduits for the speech of others. Section 230 of the federal Communications Decency Act rewards internet providers which do not speak for their users but which instead merely act as pass-through entities. Extraordinary would be the day that Facebook agrees to subrogate itself in a First Amendment claim by a user against the government for a request to shut down an online “event” page.

And, if the issue is interference from the government, one has to wonder: if the government can shut down a physical business for allowing too many people to gather in violation of social distancing orders, can the government shut down part of Facebook if it, as a business, allows too many people to gather in violation of social distancing orders? That is a more constructive question for debate because a Facebook “event” is more like conduct than speech.

Some of the reaction online suggests that Sen. Hawley’s comment led to more confusion than constructive debate.  It also led to at least some not-so-hidden criticism:

A few shot straight back at Sen. Hawley:

[Photo by Sarah Silbiger/Getty Images.]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is a former anchor and executive producer for the Law&Crime Network who now contributes to the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.