It’s Wrong For Politicians To Announce Plans To Punish Companies For Speech, No Matter Who Does It

I feel like I keep needing to write this, but once again, no matter who does it and no matter which company they’re targeting, it’s wrong for politicians to promise to punish companies for their speech. For some reason, many people’s position on this point changes based on whether or not they like or dislike the politician, and whether or not they like or dislike the company. But it’s wrong.

It’s wrong when Senators Ted Cruz and Mike Lee go after Major League Baseball for its speech. It’s wrong when Senator Elizabeth Warren threatens Amazon for its speech. It’s wrong when Senator Marsha Blackburn (and a ton of others) threaten Disney for its speech. It’s wrong when White House officials threaten Facebook for its speech. And it’s wrong when Rep. Ken Buck threatens Apple for its speech.

All of this is grandstanding nonsense, but it’s designed to suppress speech. It’s designed to punish companies for speech that these elected officials dislike. And that’s even if the companies have said something stupid or acted in a way that deserves a regulatory response. By positioning any response as retaliation for speech, these politicians are fundamentally going against the 1st Amendment.

Some have argued that these retaliatory threats don’t amount to an actual 1st Amendment violation because a single politician can’t pass legislation by themselves. But you don’t need to pass legislation to violate the 1st Amendment. Indeed, in Bantam Books v. Sullivan the Supreme Court noted that merely informing someone of “objectionable” speech could violate the 1st Amendment.

While not an exact match, in that case book distributors were informed by a Commission of books that the Commission felt were “objectionable”, with the vague threat that if the distribution went ahead, then some sort of legal punishment might follow. The Court not only found that this violated the 1st Amendment, but that in some ways, the mere threat was worse than if an actual censorial regulation had been put in place. Because when it’s just more vague statements there is less definition in how to appeal, and much greater likelihood of simply over-censoring.

Unfortunately, this now seems to have become the norm on both sides of the political aisle. Browbeat companies for their speech, and threaten to pass regulations (even if those regulations might make sense absent the question of retaliation) in response to the speech. This only serves to put pressure on companies to be silent — which appears to be what these politicians want.

And it is that wish for silence, and the implicit threat in response to speech, that is so problematic.

Even in the cases where you might agree with the underlying regulatory proposal, you should be against these threats because they actually make the regulatory proposals that much less likely to be effective, because companies will be able to challenge them in court as violating the 1st Amendment due to the stated threats of these grandstanding politicians.

If you believe that certain regulations are necessary to deal with certain companies, then make that case. But if you claim that companies need to be punished because of their speech or political activity, then you are a part of the problem.