The dissent in Telescope Media Group v. Lucero offers a glimpse at the progressive vision for the future of the First Amendment.
The First Amendment Will Not Save Free Speech
In the wake of heated efforts to deplatform Joe Rogan and ban fundraising for the Canadian trucker convoy, combatting “cancel culture” has emerged as the foremost issue for the modern conservative movement. The ability of well-funded left-wing activists to prevent conservatives from speaking publicly—right down to blacklisting payment processors, service providers, and entire social media platforms—poses an existential threat to free and open political discourse.
In this fight, the First Amendment would seem like a natural ally. No less an authority than the U.S. Supreme Court has declared, “A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” And the High Court has said that the “proudest boast” of the First Amendment is that it protects all speech, including “ideas that offend.”
To be sure, the First Amendment performs an important function in preventing the outright criminalization of so-called “hate speech” and disinformation. In practice, however, broad interpretations of the First Amendment function to prevent governments and victims alike from fighting back against cancel culture in any meaningful way. Fundamentally, that is because the First Amendment is a restraint against government action, not private action. And, given that most cancel culture efforts are undertaken by private entities without state involvement, expansive interpretations of the First Amendment very often—and quite perversely—restrict legislative and judicial efforts to protect free speech.
Thus, proponents of free speech should see the First Amendment as a limited ally, potentially helping in those instances when the cancellation comes from a state actor like a university. But we cannot expect it to solve the broader threats to free and open discourse in the modern age, which increasingly come from well-funded private actors. In fact, a very broad reading can protect the cancellers.
Take social media deplatforming. The ability of large tech platforms to ban individual users from public forums, up to and including the sitting President of the United States, lies at the very heart of cancel culture. One might think that governments would have a particularly compelling interest in ensuring that the channels for public debate remain open to all, regardless of viewpoint. After all, this interest lies at the heart of the First Amendment.
In 2021, both Texas and Florida passed bills to combat social media deplatforming. Texas’s law prohibited any viewpoint discrimination by a large tech company; Florida’s limited its reach to deplatforming or shadow-banning candidates for public office.
Ultimately, the differences did not matter. Both laws were swiftly struck down by two different federal courts as violating the First Amendment. In both cases (NetChoice v. Paxton and NetChoice v. Moody), the courts saw the relevant First Amendment interests as belonging solely to the censorious tech platforms—not individuals censored or deplatformed. In the view of both courts, the tech giants had broad First Amendment rights to suppress online speech. Individual users, by contrast, had no comparable rights to be free from being forcibly silenced. Both cases rejected out of hand the notion that giant social media platforms were common carriers that passively transmit the messages of individual users. That move was important, because “common carrier” status under common law traditionally subjects common carriers to broader regulations that protect open access. Instead, the judges rather dubiously analogized large social media platforms to newspapers that individually curate what articles to publish—even though, of course, the whole point of these platforms is that they allow individual users to self-publish their own thoughts without any prior approval.
The courts squarely rejected arguments that states had a compelling interest in protecting individual users from viewpoint discrimination—“not even close,” said the judge in Moody. And both rejected the idea that the state had a general interest in allowing the free and open exchange of ideas on large social media platforms. Indeed, the courts suggested that these statutes were unlawful precisely because they were prompted by a desire to prevent discrimination against conservatives. In acting to counter the platforms’ liberal biases, that is, the states acted based on an illicit, retaliatory motive.
The two NetChoice decisions, if upheld on appeal, threaten to torpedo any legislative response to cancel culture—at least insofar as the cancellations are carried out by private companies. Indeed, their reasoning could have significant implications for any attempt to prevent private employers or providers of public accommodations from discriminating on the basis of political affiliation. Recall that the anti-deplatforming laws in Texas and Florida did not differentiate based on the political ideology of either the speaker or the platform. Nonetheless, the courts both cited the subjective intent of the legislatures that passed the laws, who specifically expressed concern about the tech companies’ liberal biases, as proof that the laws were in fact motivated by viewpoint discrimination. Under the broad reasoning of the NetChoice cases, then, any legislative effort to redress viewpoint discrimination, even if phrased neutrally, could be struck down as an act of First Amendment retaliation against “liberal” companies.
Well, what about tort law? After all, many instances of cancel culture are motivated at root by economic or personal rivalries. Think of the campaigns supported by rival media outlets to cancel Tucker Carlson and Joe Rogan, or the spiteful personal feuds that blossom into full-bore cancellation efforts. The torts of intentional interference with contract, unfair competition, or defamation would seem to be available vehicles for fighting against organized cancellation campaigns designed to pressure private companies into firing, dropping, or otherwise boycotting certain individuals or companies.
But the First Amendment throws up major obstacles to any attempt to use tort law to combat cancellation efforts as well. The Supreme Court’s 1965 New York Times v. Sullivan decision, based on the First Amendment, greatly restricts the ability of “public figures” to sue for libel and slander. The concept of a “public figure” includes not just celebrities, but also “limited purpose public figures,” ordinary people who happen to become the subject of widespread negative media coverage. The Supreme Court in Sullivan relied on the notion that libel suits could chill “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” But it makes less sense to hold that citizens who have the bad fortune to get caught up in a news cycle should be without recourse when they are subjected to “vehement, caustic, and sometimes unpleasantly sharp attacks” by media outlets based on nothing more than falsehoods.
Take the case of Nicholas Sandmann, the Kentucky teenager who was falsely accused by multiple media outlets (especially the Washington Post) of threatening and taunting a Native American activist during the 2019 March for Life rally. Despite the clear falsity of the media coverage about him, Sandmann’s suit against the Post was initially thrown out by a federal judge. Concluding that the entire incident involved a “matter of public concern” because it took place at a political protest, the judge found as a matter of law that the Post’s false claims that Sandmann mocked, jeered, and confronted the activist were protected by the First Amendment. While the judge later granted limited discovery after Sandmann filed an amended complaint, the judge never formally approved the suit and indicated he might toss it at the summary judgment stage. The suit’s initial dismissal—and the likelihood that the case would have ultimately been dismissed at summary judgment—probably played a big role in convincing Sandmann to settle.
A lesser-known Supreme Court decision, NAACP v. Claiborne Hardware, provides broad First Amendment protection against tort and antitrust claims deriving from coordinated boycott and protest efforts, such as those led by activist groups like Sleeping Giants. Between the two cases, Sullivan and Claiborne Hardware give nearly unlimited protection for activists to wage coordinated pressure campaigns against individuals and groups, urging advertiser boycotts, hurling false accusations, and implicitly threatening those who do not comply with activist demands.
Of late, many conservative-leaning judges have praised the First Amendment as a bulwark against cancel culture. But, quite ironically, present interpretations of the First Amendment function to prop up cancel culture against any legislative or tort-law effort to redress it. Current First Amendment doctrine, if pressed forward, threatens to intensify cultural battles and force further fragmentation—into separate communications platforms, workplaces, and service providers. Cancel culture will no longer be a problem that can be contained by legislative or judicial means, but an ever-escalating battle of warring political tribes. We should carefully consider whether our already-polarized nation can survive that outcome.