Big tech vs. compelled speech

There’s more to the First Amendment than simply getting to say whatever you want

This week President-elect Trump named current FCC Commissioner Brendan Carr as his nominee to lead the agency. Carr, who is currently the senior Republican on the Commission, is a longtime critic of the tech industry (social media in particular), and has accused dominant firms of operating a “censorship cartel”.

Carr’s chapter on the FCC in the Project 2025 document calls for “empowering consumers” to choose their own content filters and fact-checkers, essentially stripping content moderation control away from the companies themselves, but offers this disclaimer …

It should be noted at this point that the views expressed here are not shared uniformly by all conservatives. There are some, including contributors to this chapter, who do not think that the FCC or Congress should act in a way that regulates the content-moderation decisions of private platforms. One of the main arguments that this group offers is that doing so would intrude—unlawfully in their view—on the First Amendment rights of corporations to exclude content from their private platforms.

There is no elaboration on what (I think) he means by the “First Amendment rights of corporations”, so the purpose of this article is to provide it.

The legal rights to which Carr refers are collectively known as “compelled speech doctrine”, which says the government cannot force a private person to say something they don’t want to say, nor can the government punish a private person for refusing to engage in government-favored speech. The story of how all this came about is an interesting bit of history, and starts in the late 1930’s, when patriotic sentiment with a world at war began playing an increasing role in mandatory salutes of the flag and recitation of the Pledge of Allegiance.

A brief history

In 1938, Walter Gobitas was a convert to Jehovah’s Witnesses in the predominantly Roman Catholic community of Minersville, Pennsylvania. His children were teased for it in school, and things came to a head when he directed them to refuse to recite the Pledge of Allegiance. For Jehovah’s Witnesses, saluting and pledging allegiance to the flag was viewed as idolatry of an earthly symbol and thus an unfaithfulness to God. In the absence of a law requiring students to recite the pledge, the school board simply expelled the children. Gobitas sued on the basis of the First Amendment right to free exercise of religion and won the case. The school board appealed to the Third Circuit, which upheld the lower court ruling. The school board then appealed to the US Supreme Court, which heard the case in 1940 (Minersville School District v. Gobitis [sic.]). Long story short, Gobitas lost a near-unanimous decision (8-1), in which the Court called the school board’s flag-salute requirement a “secular regulation” that advanced a state interest in “national unity”, which was thought to be more important than the individual liberties of a particular group. Sound familiar? We’ll come back to this.  

Following the Supreme Court ruling, the West Virginia Board of Education decided to codify the requirement to salute the flag and recite the Pledge of Allegiance in state law in 1942. The penalty for noncompliance was expulsion from school and monetary fines for parents. Marie and Gathie Barnett, both Jehovah’s Witnesses, were instructed by their father not to salute the flag or recite the pledge and were subsequently expelled. The Barnett family sued on the basis that the new statute violated the Fourteenth Amendment guarantee of equal protection under the law and the First Amendment guarantees of free speech and free exercise of religion. The district court enjoined the enforcement action, after which the West Virginia Board appealed directly to the US Supreme Court, which agreed to hear the case (West Virginia State Board of Education v. Barnett). In a 6-3 decision, the Court sided with Barnett and overturned Minersville v. Gobitis, holding that “compulsory unification of opinion” offended free speech values, and that governments shall not prescribe what is favorable or disfavorable with respect to politics, religion, nationalism, or any other matters of opinion. The Court’s holding in Barnett formed what we now know as compelled speech doctrine and has been the law in the United States ever since.

How does this apply today?

Nowadays, this issue rears its head from time to time. Remember when NFL players were kneeling during the national anthem and online chatter often devolved into, “That should be illegal!”? Well, such a law would be unconstitutional based on compelled speech doctrine. Remember the social media debates during the COVID-19 pandemic in which lawmakers in Congress were proposing bills to force social media platforms to carry truthful, accurate information about vaccine safety and efficacy? Those bills would also be unconstitutional under compelled speech doctrine. Legally, companies are private persons and cannot be compelled to carry government-favored speech, nor can they be punished for refusing to carry speech that the political party in power decides is “the truth”.

Government handwringing about online speech is bipartisan: Democrats feel platforms aren’t doing enough to censor harmful mis- and disinformation, while Republicans feel they are doing too much to censor conservative points of view. Neither party has proposed anything that would stand up to constitutional muster or garner bipartisan support. Independent of law- and policymaking, if you’re a private person with enough money, you can simply make an offer to a company’s shareholders, buy the firm outright, and turn it into the platform you think it should be. I don’t like what Elon Musk has done to Twitter, but I’ll defend his First Amendment right to turn it into the mess it is today. He owns it and he can do whatever he wants with it, while the free market can choose to take its ad dollars and engagement somewhere else.

Interesting times

For Carr’s part, he is a lawyer, having graduated from Catholic University of America’s Columbus School of Law, and is obviously an expert in telecommunications law, having served as the FCC’s General Counsel before being appointed to the FCC during Trump’s first term with bipartisan support. Giving him the benefit of the doubt, there is no chance a lawyer of his pedigree and experience is confused about compelled speech doctrine. The directional thinking he’s shared publicly appears to be a call to revisit it, but that is speculation on my part. The point is that these views exist in a context that includes calls for smaller government and deregulation. Even the President-elect’s announcement declared Carr a “a warrior for free speech”. But these words ring hollow when they’re followed by regulatory proposals that have big-government vibes and are facially offensive to the First Amendment. The 1940 decision in Minersville v. Gobitis that argued national unity supersedes individual liberty is a cautionary tale. Credit goes to the Court for agreeing to hear Barnett only a couple years later and reversing itself to fix a bad decision, but just because these cases were decided a long time ago does not mean this issue can’t be revisited.

I confess I don’t know what will happen here: as Nobel prize-winning physicist Niels Bohr once said, “prediction is very difficult, especially if it’s about the future”. But we do know tech firms will certainly have a point of view about this, and one of the First Amendment’s other guarantees, freedom to petition the government for a redress of grievances, will protect their right to spend millions on lobbying.

/end