The Right’s New Legal Crusade Against Corporate Free Speech
Bad laws, dizzying hypocrisy, and fantasies of the past and future.
In September the conservative legal movement won an outstanding victory at the Federal Election Commission. When corporations speak about politics, conservatives have long argued, their speech is not a campaign contribution under federal election law. The September ruling confirmed that the respondent corporation may promote some political views, and not others, when it has a valid commercial reason for doing so. Three of the six commissioners went further. They argued that the corporation has a First Amendment right to speak about politics, including elections, without FEC oversight.
If you are aware of this case, you almost certainly haven’t heard it described as a victory for conservatives. Indeed, the Republican National Committee was on the losing side. It was challenging Twitter’s suppression of an October 2020 New York Post story about Hunter Biden’s laptop. Among the few on the right who even noticed the decision, a common reaction was to imply corruption. “The regime has acquitted itself,” wrote Sohrab Ahmari, then an editor at the Post. A Fox News host suggested that then-Twitter CEO Jack Dorsey go to prison.
Conservatives have soured, to put it mildly, on corporate free speech. Last spring Senator Mitch McConnell urged “corporate America” to “stay out of politics.” (He later backtracked, perhaps realizing that he is not one to talk on the subject.) “Big Business has gone hard left,” Senator Ted Cruz recently protested. At the Federalist Society’s national convention last month, many top conservative lawyers questioned corporate political power. “Massive corporations,” one speaker asserted, are seeking “to destroy American freedom.” Vivek Ramaswamy, a tech entrepreneur and critic of woke culture —he is the author of the new book Woke, Inc.—endorsed the left’s objection to Citizens United v. FEC (the 2010 Supreme Court ruling that conservatives loved). In political debates, he said, “every person’s voice and vote” should be “weighted equally, unadjusted by the number of dollars they control.”
As David Brooks observes, the right is coalescing around a new project: “using state power” to “humble the big corporations” and “push back against coastal cultural values.” But vowing to enact laws that tame woke capitalism is one thing; crafting and passing legislation another; and ensuring that that legislation is constitutional yet another.
The right’s budding legal crusade against corporate free speech is off to a slow start. Certain GOP state lawmakers, it is true, can boast about getting a couple anti-Big Tech bills signed. But the quality of the bills is another matter. In May Florida granted must-carry privileges—in the law’s words, a right against being “deplatformed” or “shadow banned”—to political candidates (really, anyone willing to “run” for state office by filling out a couple forms) and “journalistic enterprises” (actually, any outlet, from Rotten Tomatoes to InfoWars, that creates a lot of content and has a large audience). The Florida law, SB 7072, also requires that content moderation policies be applied in a “consistent manner.” Not to be outdone, Texas in September passed HB 20, which bans content moderation based on “the viewpoint of the user.”
These bills target perceived political opponents for their perceived political beliefs. We know this because the bills’ supporters tell us so. Florida Governor Ron DeSantis speaks of holding social media websites “accountable” for favoring “the dominant Silicon Valley ideology.” When HB 20 was introduced, Texas Governor Greg Abbott proclaimed (on Twitter, no less) that “silenc[ing] conservative speech” is “un-American”:
https://twitter.com/gregabbott_tx/status/1367699473703579652?lang=en
But social media companies have speech rights of their own. Laws that regulate the content of speech are suspect under the First Amendment. In a June order blocking enforcement of SB 7072, a federal trial judge noted that Florida’s law is “about as content-based as it gets.” To have even a chance of standing, a law that favors some speakers or messages over others must further a compelling government interest. Florida’s desire to prop up conservative speech is not the ticket. As the judge who blocked SB 7072 put it: “Leveling the playing field—promoting speech on one side of an issue or restricting speech on the other—is not a legitimate state interest.” Florida has appealed the judge’s ruling to the Eleventh Circuit Court of Appeals.
Texas’s HB 20 is, if anything, an even more blatant violation of social media companies’ right to decide what views they will host and spread. It, too, has been challenged in court, and it, too, is likely to be blocked. A federal district court is expected to issue a ruling this week.
At the federal level, Republicans like to attack Section 230 of the Telecommunications Act of 1996, a law that broadly protects websites from liability for hosting others’ speech. Republicans toss around anti-Section 230 bills like confetti. Yet narrowing or repealing Section 230 would almost certainly hurt rather than help the GOP “fight” against tech “censorship” of conservatives.
The question is: Would Section 230’s demise prompt websites to leave more content up, or to take more content down? As the conservative media company PragerU has already learned, there would still be no good route to recovery against a website that blocks content. The same could be said of a website that hosts content, but not with nearly the same confidence. If anything that happens in an online forum is potentially the fault of the forum itself, plaintiffs and their lawyers will line up to use any real-world harm caused by online content—any trauma inflicted by hate speech, any civil disturbance incited by misinformation, any defamation inspired by a conspiracy theory—as the basis for a tort suit against a deep-pocketed social media platform. The prudent response to such suits, had they teeth, would be to cease hosting provocative content—starting with the MAGA tough guys and edgelords who, the right’s “censorship” canard notwithstanding, continue their dime-store Mussolini act on Twitter to this day.
So a straight curtailment of Section 230 would likely blow up in conservatives’ faces. And an attempt to attach a “neutrality” requirement to Section 230—a hot idea among congressional Republicans—would have similar First Amendment problems as does the unconstitutional “neutrality” requirements in SB 7072 and HB 20.
Ever desperate for just the right partisan mask, the one that will at last fool voters into thinking he’s not Marco Rubio, Senator Marco Rubio recently introduced the strenuously anti-woke “Mind Your Own Business” bill. The bill targets corporate actions “facially unrelated” to the corporation’s “pecuniary interest,” such as boycotts of states that pass election or anti-abortion laws. Under the bill, a corporation would bear the burden, in a securities lawsuit, of showing that such actions do not breach its directors’ fiduciary duty to shareholders.
As Professor Stephen Bainbridge explains, the bill, if passed, would be a monumental conservative own goal. Conservatives like that corporate law is generally a state issue. Firms can incorporate where they’ll enjoy the best and most efficient regulation. But the bill would be a huge step toward federalizing corporate law. In addition, conservatives like the business judgment rule, which, by granting directors’ conduct a presumption of reasonableness, shields corporations from activists and shysters. Because it might indeed be sound business to flatter the views of young progressive customers, the bill must limit the business judgment rule—and implicitly invite others to limit it further. Similarly, conservatives dislike frivolous shareholder suits. Yet here again Republicans suddenly seem anxious to unbridle the plaintiffs’ lawyers. Worse still, Bainbridge notes, Rubio is willing to do so with a bill that has little prospect of curbing corporate wokeness. So long as corporate cultures are progressive, corporations will, absent truly sweeping restriction, do and say progressive things.
Those who would dismiss these objections as more institutional conservative softness should know that Bainbridge once submitted a brilliantly anti-woke “Diversity, Equity, and Inclusion” statement to his employer, UCLA. Bainbridge is a bona fide dissident. Rubio plays one on television.
So far the legislators’ performance has been uninspired. What ideas are brewing upstream, among the intellectuals?
The notion that Twitter and Facebook are common carriers, and thus obliged to serve all comers indiscriminately, came to the fore on the right in April, when Justice Clarence Thomas, picking up the work of Professor Adam Candeub, promoted the idea in a solo opinion. But conservatives cannot get traction from the argument that social media is common carriage. The common carriers of old, such as railroad and telegraph companies, received exclusive easements and rights-of-way from the state. Social media firms have enjoyed no comparable government favors. (No, Section 230, which protects every website and service on the internet, is not even close.) Further, railroad and telegraph firms sometimes possessed not only monopoly control, but physical bottleneck control over service. Twitter and Facebook have nothing like that. No company can control information on the internet as a company could once control a town’s rail or telegraph line.
Above all, common carriage isn’t just some label you can slap on businesses you dislike, in order to snatch away their First Amendment rights. When they decide what content to allow, block, promote, demote, label, and so forth, Twitter and Facebook are engaging in free expression. You can’t force a newspaper to carry your op-ed by declaring the paper a “common carrier.” Social media is no different.
But the new conservative angst about corporate speech, as we know, runs deeper. It’s not just social media that Republicans are worried about. What, they’re asking, is to be done about woke corporate speech writ large?
One popular approach to this question is to ignore it. Proposing policies—real policies; ones that try to account for legal and regulatory obstacles, the political and cultural balance of power, and likely unintended consequences—is hard. Shouting that “RINOs” and “right liberals” are “losers” who don’t “fight” is easy. Water flows downhill. For many on the right these days, the anger is the plan.
In reality, conservatives, to get anywhere in using the law to control corporate speech, would first have to discard the principle that speech regulation must be viewpoint-neutral. They would have to convince the Supreme Court to see the First Amendment in a new light. They would basically have to alter the course of constitutional law.
Enter the Harvard Journal of Law & Public Policy, which correctly describes itself as “the nation’s leading forum for conservative and libertarian legal scholarship.” It recently published a manifesto by Josh Hammer on the need for what he calls “common good originalism.” “Post-1982 originalism,” Hammer complains, “has taken on a historicist tint and has frequently been conceived as a logical corollary of a hermeneutics of basic textual determinacy.” (Can’t have that!) Far better if judges embrace “the wholly legitimate legal interpretive guideposts of teleology and purposivism.”
Hammer starts, at least, with a valid premise: Finding the “original meaning” of the Constitution is often not as straightforward as some would have you believe. A good next step might be to say that when the original meaning is unclear, the originalist judge should uphold a democratically enacted law. Hammer, for his part, believes that the judge should instead use “moralistic argumentation” to pursue “the telos of the American regime and constitutional order.” Hammer’s judges would seek to promote “true human flourishing in a well-ordered society.”
As desirable as this might at first sound—who opposes human flourishing?—the tricky part is what it means in practice. Appeals to morality as a guide to legal interpretation tend to give short shrift to a very difficult question—“whose morality and why?” Quite often, “natural law” means no more than “stuff I like,” and arguments from supposed first principles serve as mere fig leaves for short-term political aims. According to Hammer, the “common good originalist” doesn’t just oppose Roe v. Wade (1973); he thinks that abortion is probably unconstitutional. He doesn’t just oppose Obergefell v. Hodges (2015); he is “deeply hostile” to it, because in his eyes a constitutional right to gay marriage “structurally undermine[s] the family.” He doesn’t just oppose birthright citizenship; he believes that it is “profound[ly]” harmful to “the sanctity of national citizenship.” You might question whether this is what fealty to “the telos of the American regime” requires. Then again, “solipsistic citizens’ ‘own perceptions of what is best for them’ are, for all intents and purposes, constitutionally irrelevant”—so shut up.
What does Hammer have to say about free speech? He questions whether “it is our law and our tradition”—as Citizens United puts it—“that more speech, not less, is the governing rule.” “The Founding generation,” he claims, was in fact quite “fastidious” about “harmonizing” speech rights “with the common good.” He treats the Sedition Act of 1798 as a precedent and a model. He suggests (borrowing language from one of the Founders) that people be made “responsible” when their speech “attacks the security or welfare of the government.”
This is using a fantasy world of the past, in which the writers were restrained, the morals were pure, and the sedition laws worked, to play make-believe about a fantasy world in the future, one that’s so far-fetched as to be hard to describe. Like today, in the Founding era much of the press traded in scurrilous rumors, vicious partisan insults, and accusations of corruption. Like today, in those times the fear of anarchy was widespread. And “like today,” writes John Dickerson, “in the age of our founders one person’s depravity and slander was another person’s fact.” “Each side in the debates” of that day—Hamilton’s Federalists and Jefferson’s Republicans—“thought they were the hero in the morality play of the infant republic.” Yes, they all wanted to pursue a vision of the common good. Their side’s vision of the common good.
The Sedition Act is infamous for a reason. If presented a similar law today, the Supreme Court would unanimously strike it down. Even at the time, the law was widely thought unconstitutional. It caused an uproar. It was allowed to expire, and the fines imposed in its name were later repaid by Congress. No surprise that it was such a failure. Imagine if politicians supported by Fox News, professing to act on behalf of the “common good,” passed a speech code with the express purpose of using it to crack down on MSNBC. Would this result in a widespread embrace of shared values and an upsurge of social harmony? Of course not. The Sedition Act was the anti-MSNBC law of its day.
You can dislike Gillette’s lame “toxic masculinity” ad/lecture video and still understand that the government can’t outlaw political razorblade commercials.
Not only can’t, but shouldn’t. Conservatives complain that progressives dominate society’s most powerful cultural institutions—the universities, the news media, the entertainment industry—and increasingly the corporations (themselves a growing cultural force) and government bureaucracy as well. Rights exist in the main to protect those who lack power, yet the conservatives who yell loudest about progressive power think now an auspicious moment to curtail First Amendment rights. It’s all a bit baffling. The yee-haw populists and LARPing integralists claim to despise liberal neutrality, as though progressives don’t have visions of discarding that neutrality themselves and imposing a “common good” of their own. Do conservatives really want to cut a great road through the law to get after the Devil?
Where will they hide, the laws all being flat?
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