Robbins: Free speech! Or so they say …
I’ve written about this before.
Maybe what I should have done is mailed it to those Congresspersons howling at the moon on the ex-president’s behalf. Like they would have read it.
Let’s start with this, the First Amendment to the U.S. Constitution, which, owing to its ordinal primacy — being First and all — is sorta important. Plus, if you run out of steam reading the amendments, all the stamina it takes is to read what is important for our purposes is this:
“Congress shall make no law … abridging the freedom of speech, or of the press …”
Fourteen words. Even if one has an attention span as short as a telomere, she or he should be able to get through that.
Although the English is pretty plain, let me make it even plainer; Congress can’t make a law that limits free speech, the operative part of which being that Congress can’t pass a law. This says nothing about private persons or private companies making their own rules.
As you likely know, not too long ago Donald Trump suffered a Facebook-and-Twitterectomy. Last week, an independent Facebook oversight board upheld the Facebook suspension. What this caused — as predictably as a patellar reflex to a gentle mallet tap — were the Jim Jordans, Ted Cruzes, Mitch McConnells, and their ilk to bay like an angry pack at a crisp January Wolf Moon.
“Unfair!” they claimed. “What about freedom of speech?” they bloviated. “Unamerican!” they shuffled their feet and declaimed. And looking down the barrel of the Fox camera trained on them and speaking directly to The Base, they wailed with faces as straight as the highway from Haradh to Al Batha, that Facebook’s action somehow violated the First Amendment.
Ah … no.
Let me set the record straight.
You see, free speech only extends so far. And one place to which it does not extend is in the private universe among which we may include the Tweetosphere.
Free speech only goes as far as to the borders of the public commons. And even then — the enshrined 14 words notwithstanding — there are limitations.
Allow me an example.
Let’s say I sashay into the kind of hoity-toity restaurant for which Beverly Hills is famous. Let’s say, too, after plopping myself down, I take it upon myself in a stentorian tone, to recite every curse word I have ever learned in English, Spanish, French and Hebrew and hurl them at the cooks, the waitstaff and the patrons.
I suspect it would not be long until the maître d’ would show me both sides of the door. “Pas chez moi!” he or she might declaim — not in my house!
I might bark like a wounded dog. “Free speech,” I answer. “What about the First Amendment! I will sue,” I promise.
Well, good luck with that.
As the proprietor of a private business, the maître d’ would be fully within their rights to shut me up and deny me service.
When it comes to freedom of speech, like Dr. Seuss’ Little Cat A and Little Cat B, freedom of speech is comprised of two distinct and separate parts. Beneath Cat A’s hat is the part that says that Congress shall make no law abridging freedom of speech. Beneath B’s is the public part which, other than its feline relation to A, has its own genome.
To simplify, most times — but not in all circumstances — the government can’t shut you up. But in the private sphere, the rules are different. Businesses — take Facebook, for example — can deny you access. And if a restauranteur, retailer or other private businessperson can’t exactly shut you up, they can at least assure that what you may spew, is emitted other than within their premises.
Neither Facebook nor any other business is compelled to provide you a lectern, a forum or a platform. Neither Facebook nor any other business is required to polish the silverware with which you intend to carve up the truth or air your grievances.
Can Facebook and other social media companies ban the ex-president from their electronic shores? In a word, yup.
You’d think that those in Congress groaning at the contrived Constitutional injustice would have picked this up in freshman civics. Or maybe, what they are suffering instead is selective injustice, however much that may injure the precious treasure of our democracy.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926-4461 or at his e-mail address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com.