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The First Amendment, Now More Than Ever
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The First Amendment, Now More Than Ever

Firewalls against retribution must hold

If you follow America’s wars over Big Tech and corporate speech, you know that both sides increasingly want to use the power of government to coerce companies to change course. They agree on the need for more federal power. They disagree about how that power should be used. Broadly speaking, progressives would like Big Tech to censor more—to remove more “misinformation” and “hate” from their sites. Social justice demands more government control. 

The right, by contrast, wants Big Tech to police speech less. Right-wing outlets are full of legal ideas to overcome traditional free speech protections for corporate speech so that Congress (and not Facebook or Twitter) can dictate social media moderation policies and guarantee conservative voices a place on private platforms. The common good demands more government control.

Civil libertarians understand, however, where all this leads—and it’s not to social justice or the common good. It’s to the raw exercise of power, to the use of the government to punish enemies and reward friends, with nary an underlying legal principle to be found.  

To see a near-perfect example of principle-free power politics in action, I’ll direct you to the great state of Texas, where scandal-ridden attorney general Ken Paxton is putting on a clinic in legal hypocrisy. Fresh off his failed effort to overturn the presidential election through frivolous litigation, Paxton has set his sights on Twitter. 

On January 9, shortly after Twitter and Facebook blocked Donald Trump from their platforms, Paxton posted the following tweet:

Here it’s important to note that Twitter and Facebook were exercising their own constitutional rights when they exercised their moderation/editorial discretion to remove the president. Yet Paxton took action anyway. He sent a “civil investigative demand” (CID) to Twitter’s offices in California seeking all “policies and procedures related to content moderation on your platform, including any policies or procedures that limit the reach or visibility of content intended for public viewers.” He also demanded “a copy of all communications, internal and to third parties, you have had, between January 1, 2019, and the present regarding the social media platform Parler.com or Parler Inc.” 

After first seeking to narrow the scope of Paxton’s CID, Twitter sued Paxton in federal court, claiming that Paxton was unlawfully retaliating against the company for exercising its First Amendment rights. And in court documents, Twitter quoted a powerful argument in support of its position that issuing a CID in retaliation for free speech violates the First Amendment, an argument made by … Texas attorney general Ken Paxton.

It turns out that, way back in 2018, the Democratic attorneys general of Massachusetts and New York issued their own document demands to ExxonMobil, seeking documents detailing Exxon’s statements regarding global warming and climate change. In response, Paxton led a 12-state coalition to defend the First Amendment and oppose the demands. In his press release announcing the filing of an amicus brief in the 2nd Circuit Court of Appeals, Paxton waxed eloquent in defense of corporate free speech:

“This case is about the right of citizens to have a viewpoint on a topic of public debate without fear of government retaliation for expressing it,” Attorney General Paxton said. “The attorneys general of Massachusetts and New York are abusing their law enforcement authority to suppress the free speech of a company they disagree with, violating ExxonMobil’s constitutional rights.”

More:

“The freedom to express a viewpoint unpopular with the government is the very basis for the First Amendment,” Attorney General Paxton wrote in his friend-of-the-court brief. “In fact, the U.S. Supreme Court reiterated just last term that ‘governments have no power to restrict expression because of its message, its ideas, its subject matter, or its content.’”

This is exactly right. Paxton’s amicus brief also contains a number of ringing defenses of the First Amendment from overzealous attorneys general who abuse their investigative powers:

Here, the New York and Massachusetts Attorneys General are not using their power in an impartial manner. Rather, they are embracing one side of a multi-faceted and robust policy debate, and simultaneously seeking to censor opposing viewpoints. In doing so, they are violating ExxonMobil’s constitutional rights, abusing their power, and eroding public confidence in public officers. 

“Government abuse of subpoena power runs afoul of the First Amendment,” Paxton rightly argued. Paxton also noted that the ability to engage in constitutionally protected expression is threatened “by the chill of ‘investigations’ hanging in the air.” Correct again.

Twitter of course highlighted Paxton’s previous arguments in its own court filings (thank you to the reader who is following this case and sent me Twitter’s brief), and the battle is now joined in two federal courts—with Paxton backing the First Amendment on behalf of Exxon and attacking the First Amendment with respect to Twitter. 

This is the future that parts of the right and the left and striving mightily to achieve. And in each case, there is a political opponent just too pernicious to protect. Democratic attorneys general push through the First Amendment to stop Big Oil. A Republican attorney general pushes through the First Amendment to stop Big Tech. The same Republican attorney general protects Big Oil even as he attacks Big Tech. 

But here’s the core problem—if Paxton wins against Twitter or if the Democratic attorneys general win against Exxon, they’ll simply hand their ideological opponents yet another weapon to wage war against their own enemies. And, perversely enough, if the right undermines corporate free speech in the name of protecting conservative voices, it will give big government exactly the tools it needs to force Big Tech to censor more. Here’s the argument, at tweet length:

And another thing …

I’m not quite finished with the First Amendment. Did you catch this appalling story from Utah? After a data breach disclosed donors to a Christian crowdfunding site, a reporter went to a local paramedic’s house to ask him why he donated $10 to the defense fund for Kyle Rittenhouse, the young man accused of murdering two protesters in Kenosha Wisconsin last year. There are reports that another Rittenhouse donor outed in the breach has been fired from his job

Public exposure of anonymous donations can lead to exactly the kind of unwanted attention described above, and it can dramatically chill protected speech. In an era of public naming and shaming (along with a dreadful amount of threatened and actual political violence), it’s increasingly urgent that courts protect the constitutional right to anonymous speech. And, as luck would have it, the Supreme Court has a chance to issue a vital and necessary ruling this term.

On Monday the court will hear oral arguments in two consolidated cases, Thomas More Law Center v. Rodriquez and Americans for Prosperity Foundation v. Rodriquez, that challenge the state of California’s donor disclosure rules. The Thomas More Law Center’s cert petition outlined the stakes well:

For those associated with charities that speak on contentious matters—like Petitioner the Thomas More Law Center (the “Law Center”)—disclosing donor information to the Attorney General’s Registry poses an imminent danger of hate mail, violence, ostracization, and boycotts. Only the most stalwart supporters will give money under such a toxic cloud. Most will reasonably conclude that the risk of association is too great, with the result that groups who make the most threats will effectively shut down those with whom they disagree. 

Is there a thread connecting all these cases? Punishment. It’s about lifting protective restraints on government action to permit both public and private acts of retribution against disfavored expression. In an increasingly polarized nation, it’s hard to think of a worse time to decrease legal protections from both an angry government and angry citizens. This is exactly the moment when the First Amendment matters the most.

One more thing …

Just as I finished the edits on this newsletter, a Minneapolis jury reached a unanimous verdict in the trial of Derek Chauvin. This was a just result. To understand why, I’d urge you to listen to last week’s Advisory Opinions podcast. Sarah and I walk through the evidence, demonstrating how the prosecution made key points that would likely help the jury resolve the case.

One last thing …

Four words.

Ted Lasso. Season Two.

David French is a columnist for the New York Times. He’s a former senior editor of The Dispatch. He’s the author most recently of Divided We Fall: America's Secession Threat and How to Restore Our Nation.