One of the incredibly bizarre developments of this dysfunctional modern time is the extent to which a faction of the Republican Party is now rejecting the crown achievements of the conservative legal movement. Increasingly, the GOP is looking at remarkable legal advances in the fight against speech codes, against government regulation of corporate speech, and against government-mandated viewpoint discrimination—and declaring that it prefers power over liberty.
It wants more government control over speech. It wants speech codes.
The most prominent recent example is Florida governor Ron DeSantis’s decision to sign a bill enhancing state control over social media moderation. The new law has an interesting twist: It exempts companies that operate a “theme park or entertainment complex” in the state, a clear Disney carveout. Most companies, however, have to comply with a new set of rules—including a prohibition against deplatforming candidates for local and statewide office.
Want to post whatever you want on Facebook? Want to violate Twitter’s terms of service? Run for office!
But that’s not all the law says. It also imposes strict limitations on social media platforms’ ability to moderate user content and prohibits platforms from taking “any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast.”
You can see that the law is designed quite specifically to respond to the 2020 election and its aftermath. It’s a direct response to Twitter and Facebook limiting the reach of the New York Post’s stories about Hunter Biden’s alleged laptop and as a direct response to Twitter and Facebook’s decision to ban Donald Trump. It’s attempting to not just create a zone of posting impunity for candidates and the media, it’s also attempting to make it more difficult and more legally perilous for platforms to moderate user content.
(Disclosure: The Dispatch participates in Facebook’s third-party fact-checking program).
Taken together, the bill’s provisions compel private corporations to host (and also promote through application of their algorithms) speech they would otherwise reject. Not only do these provisions of state law conflict with a federal statute—the famous Section 230 of the Communications Decency Act—they violate key First Amendment precedents that grant private citizens broad protections against compelled speech, protect the independent political speech of private corporations, and protect all Americans against vague and overbroad statutes.
The best argument that parts of the law are constitutional rests with Pruneyard v. Robins, a 1980 Supreme Court case which upheld provisions of the California constitution that protected “speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.”
There are a number of problems with applying Pruneyard, not least of which is the fact that the case was decided well before the political speech rights of private corporations were so clearly and unequivocally established in Citizens United. But also note well the California standard upheld in Pruneyard. It stated that rights of speech and petitioning must be “reasonably exercised.” It permitted the mall to adopt “reasonable regulations” to assure that the speech activities didn’t interfere with “normal business operations.”
What’s the term for “reasonable regulation” in the online world? Content moderation.
In fact, as Corbin Barthold and Berin Szók argue in Lawfare, the most applicable Supreme Court case also comes out of the Sunshine State, and it does not bode well for Florida’s new law:
[Florida’s] content-based regulation would compel social media platforms to carry government-backed speakers and speech. This is unconstitutional, as can be seen from what happened to another bad Florida law. That one, passed in 1913, gave political candidates a right to reply to critics, free of charge, in the paper that published the criticism. In Miami Herald Publishing Co. v. Tornillo (1974), the Supreme Court unanimously struck the law down. “The choice of material to go into a newspaper,” the court wrote, “constitute[s] the exercise of editorial control and judgment.”
It would be regrettable enough if the Florida statute was the only coercive measure being adopted by red-state legislatures. But no, the ongoing alarm over “Critical Race Theory” is resulting in state legislatures proposing and passing sweeping laws designed to sharply regulate teacher and professor speech.
(I use scare quotes because it’s often unclear if red state legislatures are alarmed by the actual theory, a caricature of the theory, or by virtually any progressive argument about race and gender in the United States.)
And don’t think for a moment that these laws “only” ban advocacy of CRT. In fact, any headline you read stating as fact that a state has banned teaching of CRT is fundamentally misleading. Take for example the law just enacted in Texas. It states that a school district, open-enrollment charter, or teacher may not do the following:
Note the drafting problem here. Ask yourself—what is the line between teaching about concepts that are vital to understanding American history and culture (such as, for example, the ideology that defined the Confederacy or the various conflicting streams of thought in contemporary racial discourse) and the prohibition against making those concepts “part of a course”?
We see much the same problem in Tennessee’s recently-passed statute, which the governor is expected to sign soon:
Even when “anti-woke” laws are applied only to teachers at K-12 public schools and public charter schools (where current case law holds that teachers enjoy minimal rights to free speech and academic freedom), it is still necessary that laws be clear enough to be understood by persons of ordinary intelligence. Instead, these laws are broad and vague enough to create an extraordinary chilling effect on classroom speech.
Moreover, a number of states are considering applying these laws beyond public primary and secondary schools to include public colleges and universities. Applying such statutes to public university professors would not only flatly violate existing precedent, their very existence would cut directly against the longstanding conservative and libertarian legal effort to protect conservative, Christian, and libertarian public university professors from censorship and retaliation against their own countercultural viewpoints.
The better course of action for Americans who are concerned about public school curriculum isn’t to support broad, vague bans on the expression of ideas, but rather to use your voice to advocate for specific courses and textbooks that you believe best teach American history and civics.
In fact, this new GOP effort to regulate private speech, regulate the expression of ideas, and to even outright ban the advocacy of specific concepts has disturbing echoes of the far-left’s argument for academic speech codes in the 1980s and early 1990s.
At that time, defenders of speech codes argued that there was no true “marketplace of ideas” under traditional First Amendment doctrine and traditional notions of tolerance. As Herbert Marcuse argued in his influential essay, “Repressive Tolerance,” more neutral notions of “tolerance” (such as a neutral public square) means that “tolerance is extended to policies, conditions, and modes of behavior which should not be tolerated.” In other words, traditional tolerance harms society by permitting the promulgation of what he believed to be terrible ideas.
And what is Marcuse’s solution to tolerating terrible ideas? Censorship:
The conclusion reached is that the realization of the objective of tolerance would call for intolerance toward prevailing policies, attitudes, opinions, and the extension of tolerance to policies, attitudes, and opinions which are outlawed or suppressed.
More:
But society cannot be indiscriminate where the pacification of existence, where freedom and happiness themselves are at stake: here, certain things cannot be said, certain ideas cannot be expressed, certain policies cannot be proposed, certain behavior cannot be permitted without making tolerance an instrument for the continuation of servitude.
For a generation, conservatives and libertarians have rejected Marcuse. They’ve litigated against policies inspired by Marcuse. We’ve quoted Frederick Douglass’s legendary “Plea for Free Speech in Boston” to argue that First Amendment principles aren’t repressive. Instead, the “right of speech” is the “great moral renovator of society and government.”
The New Right, however, has decided to give Marcuse another look. Some ideas and some freedoms are too terrible for it to tolerate. CRT is too dangerous to run free. And when a commitment to liberty means progressives moderate the platforms they made, then censorship and compelled speech become components of the “common good.”
I’ve heard it all before.
I grew up believing the conservative movement to be confident in its ideas. I believed that it supported individual liberty both as a matter of principle (free speech and religious freedom were public goods) and pragmatism (we believed our better ideas could triumph in a fair debate). In fact, that’s the ethos of most members of the conservative legal movement.
It’s no longer the ethos of many members of the GOP. They’ve defended liberty, but now they’re wielding power. Yes, they believe they’re wielding power in a righteous cause, but is their cause too righteous for the Constitution?
Last December I wrote in Time magazine how the conservative legal movement—the network of elite conservative lawyers and judges centered around the Federalist Society—had saved the election (and perhaps even the republic) from Trump’s GOP. They blocked Trump’s litigation onslaught and left the GOP with no legal recourse for overturning the election.
It looks like the conservative legal movement may well be called upon again—this time to save the First Amendment from a fearful, grievance-obsessed party that seems intent on becoming what it once opposed.
One other thing …
If you’re interested in the purely military-strategic dimensions of the conflict between Israel and Hamas, I’d urge you to read this long analysis of the most recent conflict in the Times of Israel. It states rather plainly why the long-term Hamas strategy (to “expel” Jews from Israel) is doomed to fail. This section was particularly interesting:
In the mid-1990s, two IDF major generals were coming to the end of their long and storied military careers. Meir Dagan had led everything from commando squads to armored brigades and would later go on to serve as director of the Mossad. Yossi Ben Hanan, after serving as one of Israel’s most successful tank commanders in the 1973 war, would go on to lead the armored corps and the IDF’s R&D arm — though he is most famous for the 1967 Life magazine cover photo of his 22-year-old self standing in the waters of the Suez Canal, a symbol of Israeli vitality and military success.
By the mid-1990s, the two grizzled veterans, newly released from their military duties, planned to travel together to Vietnam. Both were avid students of military history, including of the Vietnam conflict. They applied for visas and made a special request to the Vietnamese authorities: to meet General Vo Nguyen Giap.
Unexpectedly, the request was approved. Giap agreed to meet them. When the Israelis arrived in Vietnam, they sat down with the man who by then had spent decades as his country’s defense minister. It was a long meeting, as Ben Hanan would later recall to Eran Lerman, a former top-ranked IDF intelligence officer and later deputy national security adviser. Lerman, now at the Jerusalem Institute for Strategy and Security, told the story to this writer.
When the Israelis rose to leave, Giap suddenly turned to the Palestinian issue. “Listen,” he said, “the Palestinians are always coming here and saying to me, ‘You expelled the French and the Americans. How do we expel the Jews?’”
The generals were intrigued. “And what do you tell them?”
“I tell them,” Giap replied, “that the French went back to France and the Americans to America. But the Jews have nowhere to go. You will not expel them.”
One last thing …
Have I ever mentioned that I’m a Grizzlies fan? Have I ever mentioned Ja Morant? Don’t look now, but the Grizzlies beat Steph Curry’s Warriors to make the playoffs and then went to Utah and shocked the top-seeded Jazz in Game One. America, this is a second-year player, on the road, out-dueling one of the NBA’s greats:
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