Make the First Amendment great again

OPINION:

Reps. Cathy McMorris Rodgers and Frank Pallone are behind the times. A bipartisan majority of Americans, from Texas to West Virginia to the nation’s capital, have united against the threat of Big Tech censorship. But the two career politicians running the House committee that handles Big Tech issues have yet to catch up.

Ms. McMorris Rodgers, Washington Republican and House Energy and Commerce Committee chair, and Mr. Pallone, New Jersey Democrat and the panel’s ranking member, recently held a performative hearing on a performative “draft” bill masquerading as bipartisan reform to Section 230 of the Communications Decency Act. It was actually designed as the predicate for the data privacy bill they will soon push in earnest, possibly as early as this week.

The unseriousness of the Section 230 hearing was reflected in the three witnesses who testified, all from the left (a radical trial lawyer from Berkeley, a former Democratic staffer from the House and a shill for Google). As expected, these witnesses all agreed that the problem with social media was … not enough censorship.

This nonsense would not have felt as out of place a few years ago when many people believed the government’s claims of a supposed misinformation crisis. Now that an actual bipartisan majority of Americans knows that the mis/dis/mal-information censorship agenda is driven for political purposes, Americans across the country, including state legislatures, courts and presidential candidates, are focused on solving the real problem of partisan censorship.  

Thankfully, just days after the show hearing, the U.S. Supreme Court unanimously held that New York state government officials could be sued for directing private companies to censor and ban their political opponents. The opinion was written by Obama-nominated Supreme Court Justice Sonia Sotomayor (whom Axios ranks as the most liberal justice on the bench) and joined by the conservative justices, including Clarence Thomas and Samuel Alito.   

In her decision, Justice Sotomayor declared, “Today, the Court reaffirms what it said [before]: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.”

That same week, I testified before the Texas State Legislature about Big Tech’s efforts to censor speech as election interference. On a unanimous, bipartisan basis, the Texas Senate Committee on State Affairs issued subpoenas to compel Google, Facebook, X and other social media companies to account for their unlawful censorship. West Virginia and Georgia are taking similar action with support from across the political spectrum. 

The bipartisan consensus to protect free speech is also on full display in the presidential race. Former President Donald Trump and independent candidate Robert F. Kennedy Jr. both spoke at the Libertarian Party convention, vowing to make the First Amendment great again. Mr. Trump announced, “I’m proud that I put forward a detailed plan to smash the censorship-industrial complex and restore free speech.” He then promised: “On day one I will sign an executive order banning federal agencies from colluding to censor the lawful speech of American citizens.”

Trailing President Biden by only 5 points in the Real Clear Politics favorability average, Mr. Kennedy gave a master class in the First Amendment: 

“There is no time when we look back at history and we say that the people who were censoring speech were the good guys. They’re always the bad guys. The framers didn’t write the First Amendment to protect convenient or desirable speech. They wrote it to protect the kind of speech that nobody wants to hear. They wrote it to protect incendiary speech. They wrote it to protect insults. They wrote it to protect misinformation and disinformation and malinformation and even lies. All of those are protected by the First Amendment. There were no exceptions.”

Shockingly, the tech giants literally claim they ought to be able to discriminate against people based on race, religion, political viewpoint or for any other reason. In a real-life example, Meta took down a Facebook site organized by Punjabi Sikhs specifically because of their religion and race. In the NetChoice cases currently pending before the Supreme Court, Big Tech’s lawyers actually argued that their clients have a constitutional right to discriminate. The example discussed in oral argument involved Uber denying service to a Black man because of his skin color.

No wonder there is a growing bipartisan consensus to protect free speech rights from thuggish social media censors. These oligarchs literally want to resurrect the long-discredited “separate but equal” holding in the infamous Plessy v. Ferguson case.

There is still an opportunity for Ms. McMorris Rodgers and Mr. Pallone to achieve an honest, bipartisan result protecting free speech rights. Under the new leadership of House Speaker Mike Johnson and Appropriations Committee Chairman Tom Cole, many of the fiscal 2025 spending bills include language to terminate the Biden administration’s ubiquitous censorship initiatives. Democrats and Republicans alike should agree on that.

• Dan Schneider is vice president of the Media Research Center’s Free Speech America.