That Misunderstood First Amendment

I know that my constant yammering about the importance of civic education can seem pretty tiresome –especially in the abstract–so I was initially gratified to read Brookings Institution article focusing on a very tangible example.

Emerging research confirms the damage being done by misinformation being disseminated by social media, and that research has led to a sometimes acrimonious debate over what can be done to ameliorate the problem. One especially troubling argument has been over content that isn’t, as the article recognizes, “per se illegal” but nevertheless likely to cause significant. harm.

Many on the left insist digital platforms haven’t done enough to combat hate speech, misinformation, and other potentially harmful material, while many on the right argue that platforms are doing far too much—to the point where “Big Tech” is censoring legitimate speech and effectively infringing on Americans’ fundamental rights.

There is considerable pressure on policymakers to pass laws addressing the ways in which social media platforms operate–and especially how those platforms moderate incendiary posts. As the article notes,  the electorate’s incorrect beliefs about the First Amendment add to “the political and economic challenges of building better online speech governance.”

What far too many Americans don’t understand about freedom of speech–and for that matter, not only the First Amendment but the entire Bill of Rights–is that the liberties being protected are freedom from government action. If the government isn’t involved, neither is the Constitution.

I still remember a telephone call I received when I directed Indiana’s ACLU. A young man wanted the ACLU to sue White Castle, which had refused to hire him because they found the tattoos covering him “unappetizing.” He was sure they couldn’t do that, because he had a First Amendment right to express himself. I had to explain to him that White Castle also had a First Amendment right to control its messages. Had the legislature or City-County Council forbid citizens to communicate via tattooing, that would be government censorship, and would violate the First Amendment.

That young man’s belief that the right to free speech is somehow a free-floating right against anyone trying to restrict his communication is a widespread and pernicious misunderstanding, and it complicates discussion of the available approaches to content moderation on social media platforms. Facebook, Twitter and the rest are, like newspaper and magazine publishers, private entities–like White Castle, they have their own speech rights. As the author of the Brookings article writes,

Nonetheless, many Americans erroneously believe that the content-moderation decisions of digital platforms violate ordinary people’s constitutionally guaranteed speech rights. With policymakers at all levels of government working to address a diverse set of harms associated with platforms, the electorate’s mistaken beliefs about the First Amendment could add to the political and economic challenges of building better online speech governance.

The author conducted research into three related questions: How common is this inaccurate belief? Does it correlate with lower support for content moderation? And if it does, does education about the actual scope of First Amendment speech protection increase support for platforms to engage in content moderation?

The results of that research were, as academics like to say, “mixed,” especially for proponents of more and better civic education.

Fifty-nine percent of participants answered the Constitutional question incorrectly, and were less likely to support decisions by platforms to ban particular users. As the author noted, misunderstanding of the First Amendment was both very common and linked to lower support for content moderation. Theoretically, then, educating about the First Amendment should increase support for content moderation.

However, it turned out that such training actually lowered support for content moderation-(interestingly, that  decrease in support was “linked to Republican identity.”)

Why might that be? The author speculated that respondents might reduce their support for content moderation once they realized that there is less legal recourse than expected when they find such moderation uncongenial to their political preferences.

In other words, it is reasonable to be more skeptical of private decisions about content moderation once one becomes aware that the legal protections for online speech rights are less than one had previously assumed. …

 Republican politicians and the American public alike express the belief that platform moderation practices favor liberal messaging, despite strong empirical evidence to the contrary. Many Americans likely hold such views at least in part due to strategically misleading claims by prominent politicians and media figures, a particularly worrying form of misinformation. Any effort to improve popular understandings of the First Amendment will therefore need to build on related strategies for countering widespread political misinformation.

Unfortunately, when Americans inhabit alternative realities, even civic education runs into a wall….


  1. Once we get people to understand that the Constitution and all Amendments refer to government involvement we need to get them to seek the source of the questionable information they are subjected to. Just as with speech; we can listen and either believe or disbelieve the speaker; with social media we can do the same and make our decision or we can seek the source of the printed information before we decide to accept or reject the content. On Facebook, the sender is identified in the upper left corner, the upper right corner contains three dots which, when clicked on offer options to keep or hide the post and often offer an additional choice to block that sender. Whether it is a government source or a personal view; it is up to US to make the decision to believe or disbelieve the content.

    Americans have become adept at denying personal responsibility for their civic – and civil – responsibility in the conditions we are being subjected to in these deeply troubled times. My conscience troubles me when I get lazy and just let things pass; we are NOT being judgemental when we make a judgement regarding right or wrong, truth or lie regarding the Trump years and the continuing control from their White Nationalist MAGA party. Like those “good Germans” who allowed the concentration camps and the Holocaust within smelling distance of the released smoke from the gas ovens to happen; the right-wingers and especially the far-right factions are allowing our democracy to be destroyed. There is no “misunderstanding” by thinking people of what happened on January 6, 2021 or “misunderstanding” of the mass shootings and the CLAIM of protection by both the 1st and 2nd Amendments. It is our responsibility, our CIVIC duty, to act, not accept or ignore what is going on around us.

  2. At a small law firm several years ago, I received 3-4 calls from people wanting me to pursue a “tattoo discrimination” case because a private employer wouldn’t hire them because of visible tattoos. They didn’t claim the First Amendment, but rather that the refusal to hire was some sort of EEOC-type job discrimination violation. I had to tell them that discrimination laws do not prevent employers from discriminating against someone because of their tattoos.

  3. What’s funny is the study’s conclusion: “Yet if we’re ever to arrive at better governance of online speech, we need to get our facts straight first.”

    As George Soros recently lamented over the Davos crowd, Western democracies are open societies while Russia and China, most specifically, Russia, are closed societies.

    If that were the case, Julian Assange’s lawyers would like to know why the US/UK governments are holding him in a confined maximum security cell for publishing the truth about war crimes committed by the US government.

    Maybe we should define facts and truth first since apparently there is a grave misunderstanding of these two topics in society even before we get into the public/private sectors.

    While the Western societies claim to be open, there are agreements between the government and technology sectors that censor voices long before eyeballs can see them. This is what Julian Assange was telling us about over ten years ago. “Google isn’t the company you think it is.”

    As we see now with the Twitter/Musk drama, things aren’t always what they seem at first glance. 😉

    And sometimes, those educating others are misinforming their pupils as well, 😉

  4. Regarding the concept of “content moderation,” journalist I.F. Stone advised us, “There must be renewed recognition that societies are kept stable and healthy by reform, not by thought police; this means there must be free play for so-called subversive ideas — every idea subverts the old to make way for the new. To shut off subversion is to shut off peaceful progress and to invite revolution and war.”
    — I.F. Stone’s Weekly, March 15, 1954

  5. JoAnn,

    Nail on head: “It is our responsibility, our CIVIC duty, to act, not accept or ignore what is going on around us.” Unfortunately, in our ever more ME culture, “responsibility” and “duty” are only to ME/our tribe. “Community” is a dying flower…

  6. You can only teach adults who are willing to learn. By the time people reach puberty, their days of soaking up information like a sponge are gone. We need to be able to overcome cognitive dissonance to move people to accept fact as fact.

  7. What JoAnn and Lester wrote. There will continue to be misunderstanding among the gentry in re the necessary role of government in triggering First Amendment protections. Why? Among other reasons, such as Fox and other right wing government haters are very loose and expansive with their description(s) of the “rights of citizens” as opposed to what ” them gummint regulators” dole out even when it is the rights of others and not the supposed rights of the citizens at stake. It is more convenient to assume the worst (’cause Hannity said so) and ignore the legal requirement that government action (or inaction where there is a duty to act) is the issue to be decided.

    What to do? Keep hammering away not only on what but who is covered by the Bill of Rights in specific fact situations – and who is not.

  8. Speaking of alternate realities, I posted a note about the Fox “News” coverage during the Jan 6th hearing. Not only they were they the only major “news” outlet to not cover it, their alternate programming was continuous with no commercial breaks. The speculation was that commercial breaks would cause people to channel surf and maybe they would see coverage that converged from the official Fox narrative. I also noted this was the biggest domestic news story of 2021 and maybe even 2022.

    One of my former work friends leans heavily right, and he questioned the why this was biggest story. I pointed out that we did not have an attempted coup lately and asked him to name something bigger. His response was it “was not even close to coup”. There are a huge number of people living in the right wing alternate reality.

    If I were a “conservative” as in the current definition of the word, I would be worried about the lack of regulation too. A company with a moral compass could cut off the lies and misinformation with no legal recourse at any time.

    Under the conservative guise of no government regulation on business, I am sure it is totally conceivable for a conservative to convince themselves that forcing businesses to not regulate lies and misinformation would be “loosing government regulation”. I would hope the net result would be a collapse of the social media businesses as these companies became cesspits of “free speech” as a majority of the uses walked away.

  9. Sheila, I agree with your main point: the Constitution protects people from only governmental violations, not from private individuals and businesses. But I disagree that White Castle and Facebook and other corporations have their own first amendment rights. The Supreme Court was wrong in the Citizens United and Hobby Lobby cases. Corporations are not people. Giving them first amendment rights and treating money as free speech has ruined our democratic system and eviscerated the principle of “one man, one vote.”

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