Avoid the Slippery Slope

Avoid the Slippery Slope by Robert Gore – Straight Line Logic

Everything government touches turns to crap.
Ringo Starr

Social media companies, search engines, and payments platforms are excising conservative, libertarian, and assorted anti-government voices. SLL argued in “The Friendly Faces of Fascism” that the largest and best known of these companies were essentially arms of the government. They are mechanisms for conveying information, opinions, and commerce between billions of people. Given their reach, importance, and ties to the government, should these ostensibly private companies be subject to the First Amendment’s prohibition of government restriction of free speech and the free press?

The First Amendment states that: 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. By its terms, the amendment applies to one institution, Congress. By necessary implication, freedom of speech and the press must also be the freedom to choose what not to speak or publish.

In Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980), the Supreme Court held that California’s Constitution permissibly required a private shopping center to allow a group to express its political views on shopping center property regularly held open to the public. California’s Constitution created an affirmative right of free speech that the court reasoned went beyond the First Amendment, which is a set of prohibitions on the government, or negative rights.

Those who argue that the social media companies, search engines, and payments platforms shouldn’t be allowed to suppress viewpoints they don’t like hang their rhetorical hats on the Pruneyard rationale. These companies are virtual public forums or enable such forums, the argument goes. As such, they should be required to accept all viewpoints.

However, Pruneyard’s reasoning is flawed. The California Constitution’s affirmative “right” of free speech doesn’t go beyond or extend the First Amendment. The two are in direct conflict. The affirmative “right” abridges First Amendment rights.

If Pruneyard Shopping Center must hold open its so-called public spaces, the owners’ First Amendment rights are curtailed. At the very least, during the time when they must hold their spaces open they are hindered or prevented from expressing their own views on those parts of their own property. They may instead be hosting views with which they completely disagree.

Any affirmative right, be it to a private property forum, medical care, housing, education or other goodies government provides inevitably restricts the rights of those coerced to provide or fund such rights. Their rights to the products of their labors and use of their property are denied.

A constitution can delineate restrictions on the government to protect individual rights—negative rights—or it can grant citizens affirmative “rights” to this, that, and the other government-provided thing, but it cannot logically do both. A government cannot employ the force necessary to supply the specified benefits without violating the rights of those from whom it takes. If it does so, sooner or later there will be nothing left to take.

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Robert Gore

Robert Gore was born in 1958 in Livermore, California. He grew up in Los Alamos, New Mexico, where both his parents worked for the Los Alamos National Laboratory. His undergraduate education was at UCLA. He graduated in 1980 summa cum laude and Phi Beta Kappa with a double major in economics and political science. He completed the JD/MBA program at UC Berkeley in 1984. He held part-time jobs throughout undergraduate and graduate school. He passed the bar exam and is an inactive member of the California Bar Association. Mr. Gore’s career in finance began in 1984 with a bank in San Francisco, trading municipal bonds. In 1985, he went to a Wall Street firm’s west coast municipal bond office in Los Angeles as a bond trader. He developed its block and institutional sales capabilities and after four years was promoted to manager of the region.