State Governments Can’t Resist The Siren Song Of Censorship

The states have gone rogue. In the last year alone, at least nine states enacted internet censorship laws. And more legislators are promising to take up the cause. But these laws are directly at odds with the First Amendment’s command that the government shall not abridge the freedom of speech. 

Undeterred, states passed laws restricting who can access social media, erecting barriers for how to access social media, and even restricting what speech can be displayed. 

The states have defended these unconstitutional laws by claiming the laws don’t regulate speech. Instead, the states say they are regulating conduct. But this claim rests on a narrow interpretation of what speech is that was rejected long ago. The First Amendment broadly protects expression regardless of medium.  Movies, video games, and the internet all fall under the First Amendment’s protection. In fact, the First Amendment even protects expressive acts like flag burning. Given the First Amendment’s broad scope, simply recasting speech as conduct will not save an unconstitutional law.

Unfortunately, many states are unmoved by these facts. As though entranced by a siren, they continue on their path toward censorship. When governments perceive a threat, whether real or imagined, they act to combat it. When they believe the threat comes from speech, they seek to suppress it in the name of safety. Yet, the First Amendment forbids them from indulging this impulse.  

But that impulse is strong. And when confronted with an obstacle, the government looks for a way around it. To evade the First Amendment, governments characterize their laws as “privacy protections,” “conduct regulations” or as restrictions of access to “places.” Upon closer examination, however, none of these justifications hold water. 

For example, California presents its Age-Appropriate Design Code as a privacy regulation. Yet, the law imposes obligations on websites to deploy algorithms, designs, and features in a certain way or face fines. Of course, algorithms, features, and designs are the means by which websites develop, display, and disseminate speech. 

Arkansas contends that its Social Media Safety Act regulates social media as a “place.” Arkansas seeks to keep minors out of this place just like it restricts their access to bars and casinos. But there is a fundamental distinction between social media and a bar or casino. Social media sites are speech sites. They are designed to facilitate the creation, consumption, and distribution of speech. Bars and casinos, by contrast, are not. 

When challenged, both Arkansas and California refused to concede that their laws are censorial. In fact, California boldly proclaimed that its law has “nothing to do with speech.” In both cases, the government’s entire position depends on courts ignoring reality and the crucial role algorithms and social media play in creating, curating, and disseminating online speech. Fortunately, courts are not so naive.

Indeed, accepting these rationalizations would require a sudden, total departure from a century of First Amendment jurisprudence. Such a departure would be drastic, but we can catch a glimpse of what such a narrow, restricted view of speech would look like by examining the early “moving pictures” industry.

In the early twentieth century, movies were sweeping the nation. But they were so new that it was difficult to square them with the common sense understanding of speech. Believing that movies were not a form of speech, several states erected censorship boards to restrict their dissemination. 

Ohio passed its Moving Picture Censorship Act in 1913. The law armed the board of censors with the authority to pass judgment on all movies brought into the state. The censors were tasked with approving only “moral, educational, or amusing and harmless” movies. The Mutual Film Corporation challenged the law and argued that it violated the freedoms of speech and publication under the Ohio Constitution. 

The U.S. Supreme Court upheld the censorship law. The Court said that movies were not covered under the right to speak, write, or publish. Movies were “mere representations of events, of ideas and sentiments [already] published and known, vivid, useful and entertaining no doubt, but *** capable of evil.”

Put simply, movies were different. They were impersonal affairs. The audience had no opportunity to interact with the cast members as they might after a theatrical production or speech. Similarly, audience members were not presented with a copy of the script to read, flip through, or take home as they could by purchasing a book or newspaper. Given these differences, movies were readily distinguishable from the sort of speaking, writing, and publishing familiar at the time. 

The Court latched on to these differences and adopted a narrow conception of speech. Given the ubiquity of movies today, we understand that the differences between movies and books are superficial.  We know that movies are expressive and protected by the First Amendment. But the Court was not armed with its own subsequent, robust case law on the subject. And while the narrow view of speech arose from a decision based on Ohio’s constitution, it held sway over the Court’s subsequent First Amendment decisions for the next few decades.

However, in Burstyn v. Wilson, the Court revisited the issue of movie censorship; it repudiated Mutual Film and its narrow view of speech. The Court said that freedom of expression was the rule. There was no need to make an exception for movies because “the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary.” In the years since Burstyn, the Court’s decisions confirmed that Mutual Film was an aberration and incompatible with free speech. Its subsequent decisions applying the First Amendment to video games and the internet firmly established that free speech applies across mediums. Leaving no room for doubt, the Court reaffirmed its commitment to a broad view of speech this term when it said that online and offline speech protections are coextensive.

Mutual Film and its narrow view of speech are obsolete. Any medium for communication—new or ancient—is entitled to First Amendment protection. Half-hearted attempts to pass off speech regulations as something else will not survive a legal challenge. When legislators choose to regulate speech in spite of the First Amendment, they do so at their own risk. 

Unfortunately, this is exactly how many states are approaching internet regulations today. As though still enamored by Mutual Film, some legislators seem determined to treat the internet like a movie from 1913 and restrict content (or access to it) if it is not “moral, educational, or amusing and harmless.” But government oversight of content is censorship. And attempts to impose censorship under an obsolete framework will find no purchase in court. These measures must fail. And they will.

Paul Taske is Litigation Center Policy Counsel for NetChoice, who has been active in challenging many of these laws.