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To the Editor:

I write to comment on an article that appeared in the Wednesday, Feb. 3, 2021, edition of The Tidewater News titled “Essay on Freedom.” My comments on the “essay” come from a First Amendment perspective, with particular reference to use of the same in the article.

The premise of the article is expressed in this statement found therein, “… the entrenched Liberals in Congress and the Media have very strong opinions about many issues and yet they do not want to give those of us who disagree with them a chance to be heard.” It was called censorship by the writer, who suggested it violated his First Amendment rights. While it may be censorship, it doesn’t violate his First Amendment rights. Why? Because our Constitution, and its protections, apply only to governmental actions, not private actions.

To understand this fact, and whom and what are protected by our Constitution, one must be knowledgeable of the “state action doctrine” adopted by our Supreme Court decades ago in the Civil Rights Cases of 1883, which doctrine, simply stated, is the principle that every part of our Constitution, and its protection of rights, apply only to governmental entities, not private individuals and entities. This doctrine was most recently upheld by a Texas federal court in an action filed by a private citizen against Facebook [Nyabwa v. Facebook, 2018 U.S. Dist. LEXIS 13981, Civil Action No. 2:17-CV-24, *2 (S.D. Tex.) (Jan. 26, 2018)]. The court, in its opinion stated, “Because the First Amendment governs only governmental restrictions on speech, Nyabwa has not stated a cause of action against Facebook.”

The writer correctly asserts, “You are able to read this newspaper because of that amendment.” That is accurate because the First Amendment protects freedom of the press. It is, however, important to note that the newspaper is not required to publish the article, because the newspaper is a private entity, not subject to First Amendment compliance requirements.

Similarly, the article states that Twitter, Facebook and Google censor conservatives, suggesting that these actions violate the conservatives’ First Amendment rights. This is incorrect. Twitter, Facebook and Google, like The Tidewater News, are private entities and thus are not subject to First Amendment violations.

As an aside, while the First Amendment is sacrosanct, it has restrictions. Read Brandenburg vs. Ohio, 395 U.S. 444 (1969), which is still precedent today, wherein the Court held that the government cannot punish inflammatory speech unless that speech is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action.”

My reason for writing is simply to point out that, in my opinion, the “essay” is based on a false premise. While this false premise may support the writer’s political rhetoric, it is incorrect from a legal perspective.

 

Jim Rainey

Franklin