California’s Counter-Enlightenment

James Gallagher and I have introduced AB 1114, to stop censorship on social media. In particular, the bill would extend constitutional free speech protections to what you post on Facebook, Twitter, and other platforms.

Freedom of speech is the lynchpin in the great American experiment of self-government. Historically, California has played a singular role in defending it. Yet in recent years our state has done just the opposite, spawning a counter-Enlightenment.

Hostility to free speech took hold first at our universities. That’s why my first act as a California Legislator in 2017 was to author a Resolution advancing freedom of speech on college campuses. Amazingly, it passed our Legislature unanimously. (You can see a video here – I can’t believe how much I’ve aged in four years at the Capitol.)

Unfortunately, my subsequent free speech legislation was killed behind closed doors – perversely enough, without discussion or debate – and the problem grew worse. It escaped the confines of campus life and started to colonize our broader culture. Now it’s gripped the social media companies that went from scrappy California startups to global behemoths and gatekeepers of public discourse.

California helped ushered in the new era of censorship that is poisoning American public life. We can help to end it by rediscovering our foundational principles.

Usually, the First Amendment doesn’t apply to private companies. But when those companies are backed by the government, it’s a different story. Yale constitutional scholar Jed Rebenfeld explains that “Google, Facebook and Twitter should be treated as state actors under existing legal doctrines” because Congress has “co-opted Silicon Valley” to censor speech on its behalf using legal immunities and regulatory threats.

This amounts to government censorship in the same way that hiring a hitman amounts to homicide: you can’t induce someone else to do something that you’re not allowed to. Rubenfeld adds: “Ordinary Americans understand the First Amendment better than the elites do. Users who say Facebook, Twitter and Google are violating their constitutional rights are right.”

Furthermore, it’s long been the law that a place like a shopping mall cannot, say, allow Green New Deal pamphleteers while forbidding Newsom Recall petitioners. These common spaces function as a “public square,” and social media platforms have become a 21st century equivalent.

Most legislation is about supporting one idea or another. AB 1114 is about supporting ideas themselves, and assuring the fullest possible opportunity for their expression. It’s about defending the values of the Enlightenment against the medieval impulse to censor. It’s a recognition that history never fails to make fools of those who claim a monopoly on truth.

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