Free speech and constitution

Let me first say that I AM a lawyer, but NOT specialised in constitutional law and not in US law either. But any graduate from any law school on the globe should have a reasonable understanding of constitutional law. That is one of the aspects included in every LL.m. out there.

It seems that amongst non-lawyers, there is a fundamental misconception of what free speech is, and then also what censorship is. So let’s start by nailing what free speech is. It is:

The right to say what you want without being stopped by the STATE.

Read that again – your right is a right in relation to the state (which is another word for the country). Not in relation to other citizens nor companies.

If the STATE prevents you from stating your opinion, that is censorship. The word censorship is also used in other contexts, but used in the context of constitutional law it only applied to the STATE preventing its citizens from saying things.

It’s quite important to then establish what it’s NOT;

  • It’s not a general right to be heard and listened to.
  • It’s not a right to access a megaphone to spread your opinions.

This means that, from a constitutional law point of view, any private player is in full control of who they lend their publishing capabilities to. Private players can deny anyone access to their platform, and can also kick people off it, at their own digression. Private players can prevent you from posting, moderate your posts and remove them. They are FULLY entitled to that.

This is what the law says. So please don’t lower yourself to the ignorant bunch that says denying “this and that person” access to “this or that platform” is unconstitutional or a limit of free speech. It’s really not. Really not. It’s a matter well outside the constitutional domain. It’s like a person not being allowed a certain club, and the clubs can decide that. Not the state.

We can have a debate over if certain platforms are so fundamental, that access to them should be in the bill of rights. Feel free to advocate that. That is another question. Poland has taken steps in this direction, so it’s indeed possible.

A small reflection on the current standings of this is that the same people who are adamant that the state should be small and who believes that any rights given to the public, is a step towards socialisation (which implicitly is a road to hell) are the very same ones that now voices that it’s unconstitutional to deny certain individuals access to certain platforms. Please understand that this line of argument is that you want to deny private companies the right to manage their own service. That is a quite severe stride into the world of government control over companies. THAT is the real stride in the path towards the bad incarnations of socialism.