Why Parler’s Lawsuit Is Bound to Fail
I have never been a free speech absolutist. I am, however, somewhat closer to being a First Amendment absolutist.
Many free speech absolutists don’t like this distinction because they think the First Amendment should guarantee the ability to express yourself in virtually any manner you like, in any setting. But that’s simply not what it says. The First Amendment, like the rest of the Bill of Rights, constrains what the federal government can do. That’s why it says, “Congress shall make no law … abridging the freedom of speech, or of the press.”
The government can’t police your speech. The exception to this, worked out in the courts and by statute, is that you can’t incite violence. Under the Supreme Court’s Brandenburg v. Ohio decision, you can even tell an armed crowd that violence is necessary. What you can’t do is advocate “imminent lawless action” with speech that “is likely to incite or produce such action.”
“We need to shoot all left-handed people” is OK. “Look, over there: That guy is writing with his left hand! Shoot him now before he gets away!” not so much.