“If all of mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.” John Stuart Mill
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If you are concerned about the impact of today's raging Cancel Culture on the ability of Americans to speak freely on a wide range of subjects, including politics, culture, education, religion, race, and public health, then there is a good chance you are aware of Justice Clarence Thomas's concurring opinion last year in Biden v. Knight First Amendment Institute of Columbia University.
In a case involving President Donald Trump's control of his Twitter account, and his subsequent suspension from Twitter, Justice Thomas said this:
"Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms."
Justice Thomas says there is a “fair argument” that Google, Facebook, Twitter, and perhaps other online platforms could be deemed common carriers. If so, they then would incur an obligation to carry, without discrimination, all lawful content posted to their sites. In other words, the platforms would be required to operate, for purposes of carrying or hosting content, in a nondiscriminatory fashion like the telephone and telegraph companies long deemed common carriers.
In Part
3 of this "Thinking Clearly About Speaking Freely Series," I explored Justice Thomas's suggestion that
Internet platforms, or at least the dominant ones, should be considered common
carriers (or public forums, an alternative suggestion). I did not advocate – at
least not then – adoption of his suggestion, and I remain skeptical for the
reasons I have articulated. Nevertheless, given my ongoing concern that
Internet platforms censor too much lawful content that ought to remain within
the realm of legitimate debate and widely available to the public, I know that Justice
Thomas's suggestion is worthy of discussion by serious scholars in a forum expressly
dedicated to respectful debate.
That's why the Free State Foundation is proud to co-sponsor, with Catholic University's Columbus School of Law, the inaugural Seigenthaler Debate, named in honor of the late John L. Seigenthaler. The virtual debate will be held on February 16 at 7:00 p.m. Mr. Seigenthaler, founder of the First Amendment Center and an editor of the Tennessean and USA Today newspapers, was widely acclaimed as a staunch advocate of free speech and freedom of the press.
The debate topic: "Resolved: “Should Internet Platforms Be Treated Like Common Carriers?” Eugene Volokh, Professor of Law at UCLA and a member of the Free State Foundation's Board of Academic Advisors, will argue in favor the resolution, and Ash Bhagwat, Professor of Law at University of California at Davis, will argue against.
I'm very much looking forward to the debate, and here I don't want to say more about the merits of the opposing positions than I have already – except these brief prompts. On the one hand, the Internet platforms, including Facebook, Twitter, and Google, which most often are accused of prohibiting or restricting legitimate debate, are private companies, generally protected by the First Amendment from government compulsion or interference relating to their content moderation decisions or practices.
On the other hand, consider this: Former Twitter CEO Jack Dorsey referred in congressional testimony to Twitter as a “public square” and “a global town square” while emphasizing the importance of a “free and open exchange” of ideas on the site. In a March 2019 post, Facebook CEO Mark Zuckerberg described Facebook as the “digital equivalent of a town square.” Google’s @TeamYouTube proudly claims on Twitter that “YouTube is a platform for free expression of all sorts.”
The purpose of the Seigenthaler Debate is to "provide a collegial forum that fosters debate, dialogue, and study of First Amendment issues from all sides." As I have often said, the free speech values at the heart of the Founders’ First Amendment are central to our country’s Constitutional Culture, and the health of our democracy. These values should be nourished in the private sphere by individuals, businesses, institutions – including, not the least of which, educational institutions. Whatever other laws or public policy actions, if any, might be deemed proper to remedy the Cancel Culture's adverse effects, nurturing a robust Constitutional Culture that supports the free exchange of ideas is a crucial antidote.
That's the job of all of us. With that in mind, I do hope you will join me for the debate, "Resolved: “Internet Platforms are Common Carriers,” on February 16 at 7:00 p.m. Pertinent information with the registration link is here.
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