Wednesday, October 26, 2022
Seana Shiffrin, University of California, Los Angeles, School of Law, has published Unfit to Print: Government Speech and the First Amendment as UCLA School of Law, Public Law Research Paper No. #26, 2022. Here is the abstract.
Twitter’s legal justification for its exclusion of President Trump, then a sitting president, is that as a nongovernmental actor, Twitter has a First Amendment right to exclude anyone it wishes from its platform. While a very respectable and thus far successful legal position, Twitter’s blunt strategy represents a missed opportunity to defend instead, or in the alternative, on the narrower grounds that Trump’s speech as a government official violated the terms of service that disallows the use of the service 'for any unlawful purpose or in furtherance of illegal activities'. This Article argues that a wider range of government speech than we have previously acknowledged violates the Free Speech Clause—specifically, government lies, culpable misrepresentations by government officials, and government attacks on the legitimacy of criticism. Blunt government attacks on the legitimacy of criticism violate the Free Speech Clause, irrespective of whether such attacks harm any particular individual or group. By denying the very content of the First Amendment’s protection, attacks on the legitimacy of criticism are inconsistent with the duties of officials to uphold the law and the Constitution. Lies and culpable misrepresentations by government officials about public affairs also violate the Free Speech Clause, whether or not those misrepresentations cause harm to particular individuals or groups. Assuming that many such violations would be nonjusticiable, the Article explores the potential opportunities and hazards occasioned by the private enforcement and development of nonjusticiable constitutional norms through the refusal to host unconstitutional speech as such. It considers whether the permanent exclusion of former government officials from social media sites is consistent with the social value of free speech and also whether the interest in protecting the social value of free speech culture recommends that media platforms should attempt to exclude all misinformation, whether by lay citizens or officials.
Download the article from SSRN at the link.