COLUMN: The hypocrisy behind an important SCOTUS case
It’s been nearly 27 years, but I still remember the elation our family felt when we learned we had won our Supreme Court case, 9-0. I remember frightening the neighbors by running out onto our balcony and screaming at the top of my lungs.
Our case, Reno v. ACLU et al, established First Amendment protections for the internet just as strong as those for print media. The future of the internet was assured — or so I thought.
This week, the court heard arguments on the constitutionality of state laws that override editorial judgments of social media companies. With all the rhetoric about “fairness,” let’s not kid ourselves. These laws were pushed by conservative legislatures in conservative states (Florida and Texas) because, in their view, social media companies discriminate against conservatives.
As a veteran of Reno v. ACLU, I find the hypocrisy mind-boggling.
Back then, conservatives were concerned about too much freedom of expression online. Now apparently there is too little. Anybody see a problem here?
Legislators in Florida and Texas have a confused understanding of censorship. The First Amendment limits the conduct of government, not its citizens.
That’s why it begins with “Congress shall make no law …”
When a newspaper fails to print my letter to the editor, they are not censoring me. When I remove a sign someone put on my lawn, I am not censoring them. When a TV show refuses to give me airtime, they are not censoring me. That’s because free speech doesn’t come with a right to make others listen.
Forcing private companies such as Facebook to give me or anyone else access to their great big megaphone is an abuse of government power. Besides, there’s a better way.
Can’t get the local paper to publish your stuff? Start a blog. Can’t get your views on TV? Get a YouTube channel. Can’t get enough Twitter followers? Start “Truth Social.” Just don’t make me read it.
Back in the 1990s, we techno-optimists saw an amazing future for the internet: secure online commerce, planetwide communications, even digital money. All these predictions and more have come to pass.
That said, we didn’t get everything right. We hoped the net would bring down totalitarian regimes. China and Russia proved otherwise. The internet can advance freedom and democracy, but it can also help dictatorships become more dictatorial.
Fortunately, we were right about content regulation. For all the internet’s messy imperfections, the heavy hand of content regulation makes things worse. So-called champions of business should know this. That conservatives are now calling for governments to overrule the judgments of private entrepreneurs shows how easily they abandon their pro-market principles. If they ever had any to begin with.
Time has moved on from 1997, and our family’s 10 minutes of fame. In the early 2000s, I burned my kids’ grainy VHS tapes of their media appearances to a DVD. When DVDs became obsolete, I ripped the DVD to mp4’s. Years later, I uploaded those to the internet, where they’ll stay as long as the kids want them to. Perhaps their children will view them and wonder what all the fuss was about.
Thanks in part to Reno v. ACLU, my kids grew up in an online world. As adults, both are extremely sophisticated internet, smartphone and computer users. Just like your kids, no doubt. I expect any future children they have will be even more so. That’s a good thing.
But this engine of human progress will be hobbled if laws the Supreme Court is hearing go unchallenged.
Justice Clarence Thomas, you’re the only sitting justice who was in the room with us during oral arguments back in 1996. You don’t remember me, but perhaps you remember your concurrence in Reno. You were on the right side then. Please let you and your colleagues be on the right side now.
Let the internet be. It’s better that way.
Barry Fagin is a professor of computer science, and senior fellow in technology policy at the Independence Institute in Denver. His views are his alone. Readers can contact Fagin at barry@faginfamily.net.





