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What the First Amendment says — and doesn’t say

It’s time for a refresher course on the First Amendment, which, as you may suspect, is near and dear to our ink-stained hearts. Americans are fortunate that the Constitution guarantees the freedom of speech and of the press. But too many Americans misunderstand what that guarantee protects, and what it does not.


One recent example is Texas Gov. Greg Abbott, who signed a bill earlier this month that makes it illegal for big social media companies such as Facebook and Twitter to ban users based on their political viewpoints. Abbott, who is a lawyer and a former Texas Supreme court justice and attorney general, ought to know better. The new law is not likely to survive a court challenge.

We’re not here to debate whether social media companies choose one point of view over another. But if they wanted to, they could, without violating the First Amendment.

Let’s revisit what that amendment says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; ...”

Facebook is not Congress. Nor is Twitter. They are private companies. They get to decide what speech gets posted on their platforms, and government — including the Texas Legislature — has no say in the matter.

The same goes for newspapers. The First Amendment protects this newspaper from the government telling it what it can and cannot print. Just as the Constitution allows us to publish what we like without government interference, it also allows us to refuse to publish anything we don’t want to — for whatever reason.

Being reasonable people, and taking seriously our responsibility to the community, we try to be consistent about what we won’t print. We expect news and opinion content to be based on facts.

When we reject a letter to the editor, for instance, that makes false claims, we’re not violating the writer’s freedom of speech. They are welcome to print their letter and hand out copies on the street, or publish their own newspaper. The government cannot prevent them from doing that. But the Constitution does not give them the right to have their letter printed in our paper if we don’t wish to print it. We could decide to print only conservative or only liberal viewpoints. There are those in this community who claim both things. We don’t do that, but we could.

The U.S. Supreme Court decided this issue in 1974, in the case of a political candidate who sued the Miami Herald because it refused to print his responses to editorials that criticized him. A Florida “right of reply” law at the time granted political candidates a right to equal space to answer criticism by a newspaper.

The court ruled unanimously that the law violated the First Amendment by telling editors what they must print.

The Texas law signed earlier this month is likely to meet the same fate. A challenge has already been filed.

Private companies, be they social media platforms or newspapers, are free to decide for themselves what content they will permit. Members of the public who disagree with those decisions are free to take their business elsewhere.

That’s the beauty of the First Amendment.