Leadership

Liz Cheney’s ousting is another blow for freedom of speech

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It was deeply disturbing and disappointing to see the May vote by House Republican leadership to remove Rep. Liz Cheney (R-WY) from her leadership role — a vote they didn’t even have the courage to take on the record, instead voting anonymously by voice.

This move is counterproductive to building a “big tent” party that would encompass and embrace diversity of thought. The future of the Republican party cannot and should not be based around fealty to a single individual.

Recent polling shows that a vast majority of swing voters see ousting Cheney as a huge mistake for the GOP — voters who are critical to GOP victories across the country. Without these swing voters, including the key demographic of educated suburban women, the GOP will fail to be successful in elections to come.

It is especially disappointing to watch the Republican leadership who pushed this issue convince a female Republican colleague, Rep. Virginia Foxx (R-NC) to do the dirty work of filing the motion, further distancing themselves and their male colleagues from any responsibility.

Cheney’s record as a conservative is unquestionable, and her leadership brought hope for an ideologically strong and healthy party.

The vote is yet another failure of Republican leaders to demonstrate vision for a future based on more than a cult of personality.

We stand by Rep. Cheney and the others who remain dedicated to upholding the US constitution and strengthening its democracy.

Congress needs to return to the business of legislating. Bipartisanship is necessary when working on the complex issues facing the US. Obstructionists have disrupted the functionality of Congress, setting the country on a dangerous path and causing the mechanisms of governance to atrophy.

There is also the matter of this being a strategy to silence Cheney, which brings us to the stifling of freedom of speech, particularly — as Cheney pointed out last year — the selective suppression practised by social media platforms.

OK, maybe free speech isn’t ‘over,’ but it is damn well in decline. And this is despite the U.S. Constitution’s First Amendment being quite clear on the extent the government can limit free speech and the press:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

We are witnessing a level of speech suppression heretofore rarely seen in US history (World War I’s Espionage Act and pre-World War II’s Smith Act exemplify among the US government’s most brazen acts in modern times to restrict speech).

The speech being suppressed today is largely (but not entirely) speech related to right wing opinion, and is being carried out by private entities such as Facebook and Twitter.

The political left gleefully reminds us that the First Amendment does not prevent private companies from limiting speech on their platforms.

Writes Jennifer Huddleston, Director of Technology and Innovation Policy at the American Action Forum, “Whether you applaud or detest the recent decisions made by online platforms, it is important to remember that these are private actors and not the government.”

On this point, Huddleston and other apologists for Big Tech-sourced censorship are correct.

However, their smug satisfaction may be illusory as some legal scholars persuasively argue there are legitimate legal grounds upon which to constrain the power of social media companies (“Big Tech”) to suppress speech.

A common argument for constraining this power comes from the “company town” perspective which cites the Supreme Court’s ruling in March v. Alabama for support. In that ruling, the Court held that private citizens in a company-owned town were protected by the First Amendment when distributing religious literature within that town, despite company rules to the contrary. In other words, in some circumstances, private actors can be treated as government-like actors and must comply with constitutional requirements when dealing with private citizens.

Other legal scholars offer a broader context in which to advocate for legal restrictions on social media censorship. Prominent among them are Donald L. Hudson, Jr., a Justice Robert H. Jackson Legal Fellow for the Foundation for Individual Rights in Education (FIRE), who argues the times have changed sufficiently since the Constitutional Convention in 1787 to justify a reassessment of where the freedoms of the First Amendment should extend.

“A society that cares for the protection of free expression needs to recognize that the time has come to extend the reach of the First Amendment to cover these powerful, private entities that have ushered in a revolution in terms of communication capabilities,” writes Hudson.

“When a private actor has control over online communications and online forums, these private actors are analogous to a governmental actor.”

Hudson knows his observation is far from new when he cites the writings of renowned legal scholar Erwin Chemerinsky, who in 1985 wrote:

Freedom of speech is defended both instrumentally — it helps people make better decisions — and intrinsically — individuals benefit from being able to express their views…

Any infringement of freedom of speech, be it by public or private entities, sacrifices these values. In other words, the consensus is not just that the government should not punish expression; rather, it is that speech is valuable and, therefore, any unjustified violation is impermissible. If employers can fire employees and landlords can evict tenants because of their speech, then speech will be chilled and expression lost.

Instrumentally, the “marketplace of ideas” is constricted while, intrinsically, individuals are denied the ability to express themselves. Therefore, courts should uphold the social consensus by stopping all impermissible infringements of speech, not just those resulting from state action.

And this inevitably brings us to the question that is likely to become increasingly pertinent:

When the interests of the government and the acts of a private interest are so closely aligned and can have such a chilling effect on free speech, should the public-private distinction be allowed to eclipse the importance of the freedoms guaranteed by the constitution?

Image via Pexels

 

About Hillary Cray

hillaryc@thebusinesswomanmedia.com'

Hillary Cray is a longtime commentator on women in politics.

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