What does “Free Speech” mean? Not what a lot of people think it does, unfortunately.
This column is sparked by a comment published on ChristopherDiArmani.com earlier this month and the US Court of Appeals decision, Prager University vs. YouTube, delivered on February 26, 2020.
“Hey. I dont agree with your post but i will defend your right to post it. I would expect you would support my right to disagree. Thats freedom. Btw. Good fir you for posting your thoughts”
This person meant well – lack of spelling, punctuation and grammar aside.
I thoroughly support their right to disagree. My support of their right to disagree does not obligate me to publish their disagreement on my website. (Although I did, in this case.)
This individual’s comprehension of the principle of “free speech” is distorted, as is their idea of what the principle means and what it defends.
If you choose to comment on what I write, your decision to share your thoughts does not obligate me to publish them. This is not an infringement on your right to free speech. You have no legal or moral claim over the content of this website, nor should you.
The only person who has a “right” to post their thoughts on this website is me. I own it. I pay all the costs to maintain it, making ChristopherDiArmani.com, in effect, my “house.”
If you disagree with my fundamental right of ownership, you are free to create your own website and post your thoughts there as often as you like. You are likewise free to reject any comments I may choose to leave there. This is your right as the owner of your house.
I side with Facebook, Twitter and every other social media platform against complaints they are shutting down or in some way restricting freedom of speech. They may well be doing so in one sense, but their actions have nothing to do with violating our right to freedom of speech but with their right of ownership.
These social media platforms are the property of their founders, not those of us who use them for free. Platform creators own “the house” they graciously allow us to visit. Ownership gives them the absolute right to allow or restrict anyone they choose from speaking on those platforms.
I don’t have to like it, but I do have to accept it.
If I disagree with the house rules I’m free to create a new house and compete in the open marketplace of ideas. If my moustrap is better, I win and gain readers and subscribers and I may choose to allow them to speak freely or not, as I see fit – just like Facebook, Twitter and other social media platforms do today.
PragerU, a conservative media company, sued YouTube.com in 2017, claiming the video sharing platform unlawfully censored its educational videos and discriminated against PragerU’s right to freedom of speech. Their lawsuit was dismissed by the US Court of Appeals for the Ninth Circuit, just as it was at the lower court level.
From that decision:
Addressing the First Amendment claims, the panel held that despite YouTube’s ubiquity and its role as a public- facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment. The panel noted that just last year, the Supreme Court held that ‘merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.’ Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019).
The panel held that the Internet does not alter this state action requirement of the First Amendment. The panel therefore rejected plaintiff’s assertion that YouTube is a state actor because it performs a public function.
PragerU’s claim that YouTube censored PragerU’s speech faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government — not a private party — from abridging speech.
The Canadian equivalent of the U.S. First Amendment is our Charter of Rights and Freedoms, Section 2b. The analysis of its limitations (below) roughly echoes the decision of the US Court of Appeals in Prager University vs. YouTube.
Section 2(b) protection does not extend to all places. Private property, for example, will fall outside the protected sphere of section 2(b) absent state-imposed limits on expression, since state action is necessary to implicate the Charter.
The principle of free speech is a protection from government’s attempts to restrict what we say. It does not, nor was it ever intended to restrict what you say in someone else’s home, be it a physical home or a virtual one, like this blog or social media platforms like YouTube, Facebook or Twitter.
This is a hot-button issue. I’d love to hear your thoughts in the comments section below.