Two Teachable First Amendment Moments

Since Election Day 2022, we have experienced two extraordinary teachable moments about the First Amendment. Those all along the political spectrum should review them as a crash-course refresher for the clear red line that our nation’s Founding Fathers envisioned when they crafted this bedrock of the Constitution’s Bill of Rights.

Elon Musk, Twitter’s new owner, has decided to lift a nearly three-year ban on using the popular social media platform that had been imposed on Donald J. Trump during the final days of his presidency. Musk indicated this reversal represented “the will of the people,” based on a quick, unscientific online poll he posted that indicated a slim majority approved of former president Trump being allowed to use Twitter again to reach the 88 million people who had been his followers at the time of his banishment.

Regardless of one’s feelings about Musk or Trump or what they stand for, this move does not raise any actual First Amendment concerns. Twitter is not owned or operated by any governmental entity, so at no time has there been any government involvement in deciding whether to exclude or include Trump.

His most fervent supporters and most vocal detractors, however, have the freedom to discuss this matter on Twitter for as long as they wish. Some may sign up for new verified Twitter accounts Musk has launched, while others may decide to move on to other social media platforms. In other words, this event really does not implicate the First Amendment in a legal sense or violate its broader free speech values.

In contrast, Trump’s potential rival for the Republican nomination for president in 2024 has been rightfully called out for violating the First Amendment and free speech values in a more direct way. Last month, U.S. District Chief Judge for the Northern District of Florida Mark Walker issued a 138-page opinion that prevented the Sunshine State from implementing new legislation strongly supported by Gov. Ron DeSantis, who signed it into law with a full blast of media exposure earlier this year. 

This “anti-woke” legislation, FL HB 7 (22R) – called the Individual Freedom Act – is designed to prohibit schools and companies from leveling guilt at or blaming students and employees based on race or sex. It indicates that a person should not be instructed to “feel guilt, anguish, or any other form of psychological distress” due to their race, color, sex or national origin.

But the law is not as benign as this description may imply. It also contains troublesome provisions that would apply to all public institutions of higher learning in Florida. “The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints,” wrote Walker. “Defendants [Florida’s state university Board of Governors] argue that, under this Act, professors enjoy ‘academic freedom’ so long as they express only those viewpoints of which the State approves. This is positively dystopian.”

Although Florida vows to appeal this ruling so the law can take effect, its powerful language reminds us there still are strong forces within government that want to restrict free speech in such a clear-cut violation of the First Amendment. The Florida legislature, backed by DeSantis, represents the very type of government intrusion that is prohibited by the First Amendment.

The white noise about Trump’s potential reemergence on Twitter continues, even though he has started his own social media platform, Truth Social, as a competitor. But we all would be much better served by resisting the Florida legislation and any of its progeny that may rise up in other states as new legislative sessions begin in early 2023. As Judge Walker wrote, “[T]he the powers in charge of Florida’s public university system have declared the State has unfettered authority to muzzle its professors in the name of ‘freedom.’” And with a literary flourish, he noted George Orwell’s doomsday novel “1984” as a close analogy of this law’s potential consequences.

So with greater attention to how the First Amendment can affect our everyday lives, Americans of all ideologies should express their opinions about these recent headline-making free speech developments – whether on Twitter or anywhere else.

Stuart N. Brotman is the author of The First Amendment Lives On. He is a Distinguished Fellow at The Media Institute and is a member of the Institute’s First Amendment Advisory Council. This article appeared in The Tennessean.