Following the insurrection at the US Capitol on 6 January, several Republican lawmakers accused the press and social media companies of censorship and attempting to ‘cancel’ conservative voices.  During Trump’s impeachment proceedings in the House of Representatives the following week, Republican Congresswoman Marjorie Taylor Greene gave a nationally televised speech in the House Chamber wearing a face mask that said ‘Censored’.  These recent examples exemplify a broader pattern that precedes the Trump era, in which Republicans crafted and embraced a false narrative that the press and social media platforms are biased against conservative voices.  Both government and private actors have fomented claims of anti-conservative bias directed to the party’s base, often using the very actors they malign to do so, including prominent newspapers, Twitter, and Facebook. 

The First Amendment applies to government efforts to regulate private speech

An important facet of this false narrative is that the purported bias against conservatives is a ‘free speech’ issue and, thus, constitutes a violation of the rights of those being ‘censored’ or ‘cancelled’.  The fundamental problem with this argument in the US is that it rests on faulty propositions regarding the scope of the protection afforded to freedom of expression in America.  While the US is rightly regarded as an outlier among liberal democracies for its expansive protection of free speech, in particular hate speech, it is also unique in placing certain limitations on the scope of such protection.  For example, the First Amendment only constrains the actions of government actors.  Thus, while it is presumptively unconstitutional for the government to proscribe expression based on content or viewpoint, which explains why hate speech is not regulated in the US, these constraints do not apply to private actors, such as publishing companies and social media platforms. 

In US constitutional law, the ‘state action’ doctrine draws the line between governmental and private conduct.  Accordingly, in each case in which the First Amendment is implicated, a court must determine whether a challenged act is that of the government, i.e., whether a particular restriction is sufficiently governmental in character to constitute ‘state action’ and, as a result, trigger the First Amendment’s protections.  The US Supreme Court opines that the ‘state action doctrine’ protects ‘a robust sphere of individual liberty’ by distinguishing the government from individuals and private entities and by enforcing the boundary between the governmental and the private.  While the Supreme Court has devised several tests for determining whether there is sufficient state involvement for a finding of state action in a given case, it emphasises that the relevant issue is whether such power has been exercised rather than the forum in which it has been applied, and that the overall inquiry is whether there is an adequate nexus between the private behaviour and the government.

Additionally, to what extent free speech protections are triggered in the US depends on where speech occurs.   For example, the Supreme Court has long recognised that members of the public retain strong free speech rights on public streets and in parks, ‘which have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions’.  With the concept of the ‘traditional public forum’ as a starting point, the Supreme Court has recognised that members of the public have free speech rights on other types of government property and in certain other government programs that share essential attributes of a traditional public forum.   The key point here is that there must be a strong connection between the property at issue and the State.  Ultimately, the fundamental question in American constitutional law is whether the conduct at issue in a particular case, even if ostensibly undertaken by a private actor, may ultimately be attributable to the government.

The US approach contrasts starkly with how free speech operates in the UK, where courts have a duty as public authorities under Section 6(1) of the Human Rights Act (HRA) to act compatibly with the rights enumerated in the Europe Convention on Human Rights.  This creates a role for Convention rights, including Article 10, in disputes between private parties at the national level, thus giving rise to indirect horizontal effect.  This does not require the courts to create new causes of action in litigation between private parties in the UK but, rather, the duty is exercised in adjudications of existing common law actions.  As a result, the right to freedom of expression under Article 10 may be enforced against a private actor at the domestic level in the UK. 

The state action doctrine and horizontal effect appear to be contradictory principles, the former premised on the idea that fundamental rights may only be enforced against the acts of the government while the latter provides for the protection of fundamental rights in private relationships.  However, many constitutional scholars argue that horizontality is present in the American constitutional framework, though, there is significant disagreement regarding to what extent and on what basis.  It is important to emphasise, however, that nowhere in its jurisprudence does the US Supreme Court suggest that individuals bear the responsibility of respecting constitutional rights or that the state action doctrine fits within the broader international legal discourse concerning horizontality.  Indeed, such terminology is entirely absent from the American constitutional lexicon and the contemporary Supreme Court holds steadfast to the principle that the Constitution’s protections do not extend to private conduct. 

Thus, because the press and social media platforms are not public actors, do not engage in state actions, and do not meet the legal requirements of a public forum, with the notable exception of the social media accounts of government actors, they operate outside of the constraints of free speech protections in the US.  Anyone with a basic understanding of the US Constitution appreciates that private entities are not subject to free speech obligations.  As a graduate of Yale Law School and former Clerk for the current Chief Justice of the US Supreme Court, it is safe to assume that Senator Hawley possesses a basic understanding of the First Amendment and to whom its protections apply.  The relevant questions are therefore whether the millions of people who read his tweets and op-eds in national newspapers claiming that his free speech rights are being attacked by, among other things, Simon and Schuster cancelling his book deal following the attack on the capitol, share that understanding and why Hawley and others who know better are disseminating this type of disinformation to the public

Not all speech is equally deserving of inclusion in public discourse

Just because the government may not regulate hateful speech and disinformation under the US Supreme Court’s interpretation of the First Amendment does not mean that Americans must recognise these forms of expression as acceptable in public discourse.  Rather, this type of expression must be contested and derided, and the speakers who spread it publicly shamed.

‘Free speech’ is increasingly being used as the rallying cry of far-right extremists in both the US and across Europe who use the term as a shield to protect them from the consequences of using private platforms to pollute public discourse with violent and hateful expression.  While this may be a valid shield against government regulation, it may not be used against bans from social media platforms or the rescinding of publishing contracts, which are reasonable and, more importantly, legally permissible consequences for irresponsible and dangerous expression.  Indeed, having one’s tweets removed or being suspended from Facebook has nothing to do with the protection of free speech in America and everything to do with private actors’ rights to hold speakers accountable for disseminating dangerous expression on their platforms.  

Given the current state of American political discourse, it may be tempting to view the UK approach to regulating political speech as preferable.  For example, while the US permits unlimited donations to political parties and candidates based on the principle that the government has no interest in preventing corporations and the wealthy from obtaining an unfair advantage in the ‘political marketplace’ and places limited constraints on political advertising on the basis of free speech principles, the UK has a statutory framework that regulates campaign financing much more rigorously and regulates political advertising for the purpose of denying powerful interests the power to skew political debate in public discourse.  However, it remains an open question in the European Court of Human Rights whether Article 10 creates a positive duty on private actors to provide platforms for speakers who desire to engage in legal expression in privately owned forums.  Important debates regarding the proper scope of freedom of expression in the digital era are regrettably being tainted by disinformation regarding what free speech means in particular jurisdictions.

Claims of anti-conservative bias are a particularly dangerous form of disinformation

The NYU Stern Centre for Business and Human Rights issued a report this month debunking the anti-conservative bias narrative, concluding that the claim ‘is in itself a form of disinformation: a falsehood with no reliable evidence to support it’, which serves to ‘whip up part of the conservative base, much of which already bitterly distrusts the mainstream media.’  Among other findings, the report notes that Twitter does not target conservatives or Republicans as such, but people who violate its rules by calling for violence, harassing others, or advocating hateful ideologies.  Those who frame this as anti-conservative bias are perhaps unwittingly equating conservatism with far-right extremist hate and the advocacy of violence. 

One of the reasons that this type of disinformation is so dangerous is that it creates a disconnect between the general public’s understanding of what constitutes ‘free speech’ and how this right is conceptualised in a particular constitutional framework.  In the US, it serves to undermine the basic principles of the First Amendment by conflating private and public regulation and fostering a misinformed public that distrusts the press, which plays a vital role in American democracy by serving as a check on the exercise of government power. 

Efforts to misappropriate ‘free speech’ for political ends by those with an outsized influence on public discourse must be called out and censured

It is imperative to appreciate the distinction between speech that warrants First Amendment protection and that which does not.  Just as importantly, the hypocrisy of lawmakers using their platforms as members of the American government to allege that their ‘free speech’ rights are being violated by private actors must be acknowledged as such and publicly derided. 

Following the January insurrection, arguably the greatest threat to free speech comes from those purporting to be its most ardent defenders.  This includes those that misappropriate free speech principles for the purpose of stoking grievance and resentment and defend the propagation of dangerous conspiracy theories, including those that relate to the integrity of the American electoral process, as a legitimate exercise of free speech.  This is particularly troubling because the perpetrators are, to a large extent, government actors who carry with them the imprimatur of the State.  This includes Republican lawmakers who have pushed the false narrative of anti-conservative bias and framed it as a free speech issue and questioned the results of the 2020 election based on specious claims of voter fraud, including Josh Hawley, Ted Cruz, and Jim Jordan.

This begs the question that if an attack on the heart of American democracy by those whose minds were poisoned by disinformation and who genuinely believe that they are the victims of anti-conservative bias does not cause a reckoning within the Republican Party, then what will?  One thing for certain is that no meaningful discussion of how to tackle the serious challenges concerning the online dissemination of disinformation and hate speech can be undertaken unless and until those with an outsized influence in public discourse stop misappropriating ‘free speech’ for political ends.

Eliza Bechtold, Durham Law School.

(Suggested citation: E. Bechtold, ‘The Republican Party’s Misappropriation of ‘Free Speech’ Undermines American Democracy’ , U.K. Const. L. Blog (8th Feb. 2021) (available at https://ukconstitutionallaw.org/))