The world of government relationships with social media is a hot mess. Whether down in Florida or in Washington, D.C., the question of what governments can and cannot do in interacting with social media platforms and their internal “censors” is a major free speech question.
Thankfully for Arizona, they had Mountain States’ own expert and senior counsel James Kerwin to testify on the matter.
On September 5, 2023, Mr. Kerwin was before the state’s House of Representatives, where an ad hoc committee on government and Big Tech held hearings on the topic “Free Speech Rights & Government Influence Over Social Media Platforms.” It was the perfect opportunity for Mountain States to provide critical expertise on the matter.
Mr. Kerwin testified about the troubling and increasing tendency of government officials to use social media companies to attack Americans’ free speech. He emphasized that the First Amendment guarantees a very broad conception of freedom of speech, including the right to talk about nearly any subject, no matter how uncomfortable for the people in power.
Of course, governments can get crafty, and in the modern era they tend to use indirect means to prevent the free flow of debate. As Mr. Kerwin pointed out, instead of breaking down doors and smashing printing presses, state officials will either foster cozy relationships or apply threatening pressure on businesses to censor their platforms.
As Mr. Kerwin testified, the First Amendment does not allow government to engage in this kind of free speech work-around. When government uses undue or coercive pressure on a business—whether a social media company, a bookstore, or a newspaper—it violates the Constitution.
Part of Mr. Kerwin’s comments at the Arizona Capitol included an overview of how courts are less than vigorous in protecting Americans from such infringements, as judges seem to distinguish between “persuading” and “suppression.” However, state governments do not need to live with such a vague area of law. Mr. Kerwin rightly pointed out that governments still committed to free speech can single-handedly enhance protections for their citizens by implementing free speech protections greater than the First Amendment.
Of course, Mountain States does not endorse any one model of legislation—it does stand ready to assist lawmakers of all kinds on how to better protect liberty for their constituents.
