Google claimed that the interruption occurred because an automated system flagged unusual activity on the account. But Gabbard did not accept this explanation; she believed that Google deliberately had tried to undermine her campaign in retaliation for statements she had made that were critical of the tech giant. As a result, in July of 2019 her presidential campaign organization sued Google, alleging that the company had violated her First Amendment rights. The lawsuit sought $50 million in damages.
Google filed a motion to dismiss the complaint, which the court granted in a terse three-page opinion.1 A simple and fundamental principle drove the court’s analysis: the First Amendment “prohibits the government—not a private party—from abridging speech” and “Google is not now, nor . . . has it ever been an arm of the United States government.” The court concluded by declaring the complaint so legally baseless that a request for a further chance at pleading a viable claim would not even be entertained: “Because these facts could never give rise to a First Amendment claim, Plaintiff’s complaint is dismissed with prejudice and without leave to amend.”
Reactions to the litigation went beyond the realm of stiff criticism into that of eye-rolling sarcasm. The technology- and science-focused website Ars Technica published a piece called “Sorry, Tulsi Gabbard, Google Can’t Violate the First Amendment.” And the cheeky legal website Above the Law expressed even greater exasperation over the misconceived lawsuit in the title of its article: “For the 847,329th Time, NO the First Amendment Does Not Apply to Businesses, Tulsi!”
Indeed, a longstanding body of case law—and, for that matter, the very text of the First Amendment—made it easy to conclude that Gabbard had no legal claim against Google. As the judge who dismissed her lawsuit recognized, the First Amendment constrains only the government; it does not apply to private entities or persons. Some rare exceptions exist—for example, under the federal civil rights laws, a private organization or individual can violate the First Amendment by conspiring to do so with a public body, an issue to which we return shortly. But no such exception applied here.
It is more difficult, however, to conclude that Gabbard had no plausible moral objection to the company’s conduct. If Google intentionally had obstructed access to information about Gabbard’s campaign, and had done so as retribution for her demands for greater accountability by major technology corporations, then that might well offend our sense of right and wrong. Indeed, as the company’s prompt and emphatic denial of the charge confirms, such actions would appear to violate the famous admonition of Google’s founders: “Don’t be evil.” In sum, that Google did nothing wrong legally does not foreclose debate about whether it did anything wrong ethically.
Our society has these kinds of debates about nongovernmental restrictions on free expression all the time. Indeed, applications of free expression principles to situations where the law does not compel them are commonplace. And they occur even though everyone has been told, “for the 847,329th time,” that the First Amendment does not limit the conduct of private actors. We label that phenomenon “the Everyday First Amendment”—our society’s impulse to extend First Amendment law to entities, persons, and circumstances beyond its technical reach.
Of course, to some extent this dynamic occurs because of public unfamiliarity with the details of legal doctrine. On this point, a 2019 study published by the Freedom Forum Institute showed that 65 percent of those surveyed believe that the First Amendment applies to private social media companies. Tulsi Gabbard’s campaign organization thus had no monopoly on confusion over this issue.
Still, ignorance of the law is not the only, or even the primary, explanation for the phenomenon. If it were, then public discussion of “rights” would end the moment someone pointed out the limited reach of the First Amendment. Instead, those arguments tend to continue unabated: “well, I’m not a lawyer, but it’s a free country and I think X should have the right to say Y.”
No, there must be some other explanation for our prevalent and persistent impulse to apply First Amendment principles to private actors. In this chapter, we explore some of the alternative possibilities. In any event, this much seems clear: regardless of whether the First Amendment formally dictates how Google must behave, people tend to think it says something meaningful about how Google should behave.
The fact that people want to provide greater protection for free expression than the First Amendment affords is, in one sense, surprising. In the same 2019 survey just cited, a substantial 29 percent of those asked indicated that they think the First Amendment goes “too far.” And, as we discussed in earlier chapters, free speech skeptics have compelling arguments that some of the expression current First Amendment doctrine shields from punishment has little, if any, value. It might seem logical that our society would want to cabin that already expansive doctrine so its influence does not creep outside the limited territory that the law assigns it.
In another way, however, the societal impulse toward the Everyday First Amendment makes perfect sense. After all, the values advanced by free expression that we discussed in earlier chapters have considerable moral force. It seems perfectly sensible that people would want to extend them into as many corners of human existence as possible. The First Amendment comes up short in this respect, advancing those values only insofar as they are threatened by government action.
This structure leaves a significant void, given that private actors can frustrate those cherished values at least as effectively as public ones. Those values suffer whenever a private social media platform bans an individual, or a private employer gags its employees from making public statements about important subjects, or a private college imposes a draconian speech code on the members of its community, and so on. The First Amendment leaves a moral vacuum; the Everyday First Amendment rushes in to fill it.
Cultural identity may also play a role. At a fundamental level, the members of our society view themselves as a people committed to free expression. That commitment therefore naturally extends beyond the boundaries of legal niceties. Of course, people take this position when the speech in question appeals to them but also when it doesn’t. “I hate what he says, but he has the right to say it” is a common refrain in public discourse.
In any event, the Everyday First Amendment materializes in a wide variety of contexts. We focus here on three that we think demonstrate particularly well the moral force of the arguments in favor of free expression: employment, higher education, and online service providers and platforms. We begin with the first of these, using as our primary example a distinctive employment setting that helps cast our points in stark relief—professional sports.
Employment
In recent years, one of the most vigorous debates about whether employers should have the right to control the speech of employees has concerned professional athletes. This particular controversy began with NFL quarterback Colin Kaepernick, who launched his career in 2011 with the San Francisco 49ers as a backup player. In 2012, the first-string quarterback sustained an injury and Kaepernick stepped into the high-profile role.
Kaepernick had tremendous success, leading the 49ers to the Super Bowl and setting multiple records along the way. Although the 49ers narrowly lost the national championship, Kaepernick established himself as a star. In subsequent years, however, Kaepernick struggled: the 49ers went through a major coaching change; the team fared poorly; he sustained significant injuries; and he began publicly musing about being traded.
During the 2016 season, Kaepernick attracted attention for a different reason: he protested during the playing of the national anthem. Initially, he remained seated and refused to stand; later, he kneeled. He explained that, through these actions, he sought to express his concern over a series of fatal encounters between law enforcement and African Americans and his support for the Black Lives Matter movement. In short order, other NFL players and professional athletes began engaging in similar silent protests during the national anthem.
Public opinion divided swiftly and sharply. Some people saw the players as spoiled and unpatriotic and viewed their act of dissent as a stain on a distinctly American pastime. As the saying goes, they “voted with their feet” and walked away from the sport: the NFL experienced a decline in viewership that season.
Harsh criticism even came from unexpected sources—including liberal Supreme Court Justice Ruth Bader Ginsburg. In an interview promoting her recently published book, Ginsburg characterized Kaepernick’s protest as “dumb and disrespectful.” She subsequently apologized, describing her comments as “inappropriately dismissive and harsh.”
Others, however, saw Kaepernick and his allies as heroes who were using their celebrity in support of an important cause. Various organizations gave Kaepernick awards for moral leadership. As support for Kaepernick grew, Nike released an ad that featured his image and the slogan: “Believe in something. Even if it means sacrificing everything.” The company’s endorsement of Kaepernick resulted in blowback from the opposing camp: some public officials pressed for boycotts of Nike by units of state and local government—ironically, policies that raised First Amendment concerns in their own right.
In short order, however, a third perspective emerged: regardless of the merits of Kaepernick’s position, he should have the freedom to express it. People taking that point of view generally adopted the rights-based language of the First Amendment. Interestingly, one of those people was a former constitutional law professor named Barack Obama.
In an interview in September of 2016, the President was asked for his opinion on Kaepernick’s protest. He began by noting that honoring the national anthem is part of “what binds us together as a nation.” But, he hastened to add, “what makes this country special is that we respect people’s rights to have a different opinion.” Invoking “freedom of speech” and the “importance of everybody listening to each other,” President Obama opined that Kaepernick was simply “exercising his constitutional right.”
At the time he made these statements, President Obama had a point. No private entity had yet instructed Kaepernick to cease his protests. To the contrary, Roger Goodell, commissioner of the NFL, offered only the fairly tepid admonition: “I don’t necessarily agree with what he’s doing.” In the absence of any private restraints on his conduct, Kaepernick had a constitutional right to take a knee.
Over the next two years, however, pressure on Kaepernick increased from both the private and public spheres. In March of 2017, he opted out of his contract but no offers materialized. As other free agent quarterbacks found positions, rumors circulated that team owners had blackballed Kaepernick. Still, through most of 2017, Goodell remained publicly respectful of players who wished to protest and he continued to use the language of the First Amendment: “The national anthem is [a point of pride, but] we also have to understand the other side that people do have rights and we want to respect those.”
In late 2017, however, presidential candidate Donald Trump entered the fray. In a series of characteristically fiery tweets, he condemned the protesting athletes and advocated for their immediate termination. With political pressure mounting, in May of 2018, the NFL team owners adopted a policy that players who kneeled during the national anthem would be subject to discipline. Various players and the union challenged the policy through grievances, which were settled on confidential terms in early 2019.
The Kaepernick controversy provides a number of important insights into the Everyday First Amendment. As an initial matter, it demonstrates how quickly our societal dialogues move toward arguments favoring free expression—even when the law clearly does not dictate it. In this respect, it is useful to bear in mind that, at least in the early going, nothing about Kaepernick’s case even remotely suggested the presence of government censorship. He engaged in his protest while in uniform, on the field, at work, employed by a private entity that operates under rules set by another private entity. Private employers generally believe that under the law they have expansive control over what their employees say under these sorts of circumstances, and they are right.
Second, the controversy demonstrates the formidable size of the gap that the First Amendment leaves by virtue of its limited application. When he launched his protest campaign, Colin Kaepernick was a leading sports celebrity and public figure. His stature made him a potential role model for countless young people, particularly those of color. His protest concerned a subject of major interest, concern, and discussion. And, yet, to the extent that his employer wished to silence him while on the job, the Constitution offered him almost no protection. The Everyday First Amendment sought to correct for this counterintuitive result.
Third, and intriguingly, as events unfolded, it appeared that maybe the First Amendment did apply to Kaepernick’s case after all. As noted above, private actors may render themselves subject to the First Amendment by colluding with public actors to violate rights that the law protects. An argument emerged that the NFL owners and President Trump may have done just that: after all, the President urged the owners to take adverse action against the protestors and appeared to have offered incentives for them to do so. Kaepernick’s inability to land a position, despite his record and his formidable talent, suggested that the owners might have given in and struck a deal with President Trump. For better or worse, the settlement of the grievances avoided a full and public exploration of the facts, which prevented this paradigmatic example of the Everyday First Amendment from becoming a case about the actual First Amendment.
With respect to the employment field more broadly, our society has sometimes filled the vacuum left by the First Amendment by adopting other laws. Thus, federal labor laws protect certain speech, even when it occurs in the context of private employment, as “concerted activity” among employees to address terms and conditions of employment. Similarly, whistleblower statutes prevent both government and private employers from retaliating against specified employee speech that serves the public interest. Private employers retain substantial control over the speech of their employees, but the moral force of the Everyday First Amendment may dissuade them from taking punitive measures and other laws may prohibit them from doing so.
Colleges and Universities
Another context in which the Everyday First Amendment has a significant influence is higher education. Indeed, perhaps no institutions in our country struggle with free expression as commonly, as vigorously, or (sometimes) as divisively as do our colleges and universities. In a later chapter, we take a closer look at First Amendment issues on campus. Here, we focus primarily on the fact that many private institutions of higher education embrace free speech principles even though the law does not require it. The Everyday First Amendment has a major role in the culture and environment of private campuses around the country—literally, “every day.”
Of course, the First Amendment applies to public universities because they qualify as government actors. A state university can no more adopt a rule or regulation that violates the First Amendment than can a state legislature. And speech codes provide a conspicuous and widely discussed example of how public institutions of higher education can get themselves quickly into trouble.
A seminal decision addressing such a code came in the 1989 case Doe v. University of Michigan.2 In Doe, a federal district court held that the speech policy adopted by the University of Michigan ran afoul of the First Amendment. A number of public university policies around the country subsequently have fallen for similar reasons.
Doe arose from facts that might make us feel sympathetic to what the university was trying to accomplish. In the late 1980s, a number of racist incidents occurred on campus and rocked the school’s community. Someone distributed an anonymous flier around campus that used deeply offensive racial epithets and declared “open season” on Blacks. A student disc jockey allowed racist jokes to be broadcast on a campus radio station. When protests against these events occurred, someone suspended a Ku Klux Klan uniform from a dormitory window.
Although the university’s president issued a formal statement condemning these incidents, pressure quickly increased for the school to do more. A subcommittee of the Michigan legislature conducted hearings and threatened to hold up appropriations to the university. A campus anti-discrimination group announced plans to sue the institution. A national civil rights leader weighed in on the controversy. As a result, the university came forward with a multi-point plan to address concerns about racism on campus, which included a commitment to adopt an “anti-harassment” policy.
After more than a year of considering various drafts, the university finally adopted a policy that was elaborate in structure and broad in application. It controlled a wide array of campus spaces, including classrooms, libraries, laboratories, and recreation and study centers. In these areas, people could be disciplined on a number of grounds, including for engaging in speech that “stigmatized” or “victimized” someone based on a characteristic like race, ethnicity, gender, or sexual orientation. Sanctions depended on the gravity of the offense and could be severe.
The university also issued an “interpretive guide” that, among other things, offered examples of speech that it deemed discriminatory or harassing. Unfortunately, the guide managed to render the policy more, rather than less, problematic. Some of the examples offered involved speech that appeared to be protected under the First Amendment, like making a negative comment about someone else’s “religious beliefs.” This plainly overreached: it could, for instance, include a good faith disagreement about the respective merits of the Old and New Testaments, a debate over the connections between radical Islam and terrorism, or a discussion of the ways in which religion historically has been used as a tool of oppression.
The guide also made clear that the policy proscribed speech that seemed to have nothing to do with discrimination or harassment—supposedly the code’s animating concerns. For example, the policy prohibited any negative statement about someone else’s “physical appearance.” Taken literally, this would allow for disciplinary measures against a student for making a good-natured joke about his roommate’s shaggy beard, wrinkled shirt, or dubious fashion sense.
At the time of the policy’s adoption, “John Doe” served as a psychology graduate student at the university. Doe taught courses that explored theories that he thought some students might view as “sexist”—for example, holding that because of certain biological differences men generally may be better than women at certain tasks. Doe brought a lawsuit asking that the policy be declared unconstitutional.
After an extended and thorough analysis, the court concluded that the policy violated the First Amendment on two bases. First, it was overbroad; it extended to speech that the First Amendment protects. Second, it was vague; a reasonable person could not tell what the policy prohibited, particularly given its use of ambiguous terms like “stigmatize” and “victimize.” The Doe decision made fairly clear what a public university could not do in its regulation of speech on campus.
Doe provided significantly less clarity, however, about what a public university could do. As a result, institutions of higher education have experimented with a wide array of policies, some more defensible than others, and arguments around college speech codes continue. Indeed, an organization called the Foundation for Individual Rights in Education has, as one of its central missions, the monitoring and assessment of such campus policies.
As a technical and legal matter, neither the First Amendment nor the reasoning of cases like Doe have any application to private institutions. The Constitution does not bar private colleges and universities from censoring vast swaths of speech on their campuses. One could sensibly even argue that, under the First Amendment, private institutions have the right to do so.
Some private institutions of higher education have taken advantage of that prerogative and have chosen to impose relatively strict limits on campus speech. Schools making this choice overwhelmingly consist of colleges and universities with strong religious sensibilities and missions. For example, the student honor code of Liberty University, an evangelical Christian institution, prohibits “vulgar comments” and the viewing of “media and entertainment” that are “lewd” or include “anti-Christian” messages. Such a policy at a public institution would violate not just the speech but also the religion clauses of the First Amendment.
Very few private institutions, however, have chosen to go in this speech-restrictive direction. Instead, the vast majority of private schools have adopted policies that are fairly—sometimes even highly—protective of free expression. They have not just embraced the Everyday First Amendment as a value; they have enshrined it in a binding and enforced statement of institutional norms. They behave as if the reasoning of Doe applies to them when it plainly doesn’t.
The leading example of such an approach almost certainly comes in the University of Chicago. In July of 2014, as many campuses struggled with free speech issues, Chicago President Robert Zimmer created a Committee on Freedom of Expression and tasked it with “articulating the University’s overarching commitment to free, robust, and uninhibited debate and deliberation among all members of the University community.” The committee, chaired by distinguished First Amendment scholar Geoffrey Stone, issued its report in January of 2015; the position expressed there has come to be known as the Chicago Principles.
The law of the First Amendment does not technically apply to the University of Chicago, which is private. Also, in light of the fact that faith-based institutions tend to be those most inclined to restrain speech, Chicago’s religious history and affiliations might seem to make it an unlikely home for robust free expression. Indeed, the university was founded under the direction of the American Baptist Church and houses one of the nation’s leading divinity schools. Nevertheless, the Chicago Principles align very closely with the law of the First Amendment and enthusiastically endorse the importance of free speech on higher education campuses.
Of course, the Chicago Principles do not stake out an uncompromisingly absolutist position. They recognize that some narrow categories of expression may be restricted, such as speech that violates the law (for example, extortion or blackmail), that defames someone or invades their privacy, or that rises to the level of a true threat. Furthermore, the Chicago Principles acknowledge that the university can impose content-neutral time, place, and manner restrictions on speech. But these limitations are largely consistent with those acknowledged by First Amendment doctrine.
Indeed, the Chicago Principles generally track the very strong protections for speech provided by the First Amendment. For example, they clearly reject the notion that individual or community sensitivities can serve as a justification to censor speech, banish ideas, or disinvite controversial speakers. The principles declare that the university will not suppress speech simply because some (or even most) people find it “offensive, unwise, immoral, or wrong-headed.” They insist that speakers be permitted to convey their messages, even when others find those messages loathsome. As with First Amendment doctrine, the Chicago Principles trust the marketplace of ideas to sort the good from the bad.
We might expect that the Chicago Principles would represent an outlier position that very few private schools would choose to follow given their range of options. To the contrary, they have proven highly influential. Indeed, as of the writing of this book, more than seventy colleges and universities (many private) have adopted them.
The distance between the policies of Liberty University and the University of Chicago leaves lots of territory and many private schools have landed in that middle space. Take, for example, Colby College, a small but highly ranked private liberal arts school located in Maine. Colby’s student handbook expressly declares that free speech “is essential in an academic community and will be vigorously upheld.” Its list of sanctionable misconduct, however, includes such things as “bias-motivated” behavior, “hate and/or bias incidents,” and “verbal abuse.” Without substantial definitional narrowing, all of those terms would suffer from serious overbreadth and vagueness problems under traditional First Amendment analysis.
It makes sense that many private institutions have adopted policies in between the extremes of Liberty and Chicago. On the one hand, they feel the tug of the Everyday First Amendment toward broad protection for free expression—a particularly powerful pull in this context, given our society’s sense that institutions of higher education should serve as enclaves of free enquiry, debate, and speech. As the Supreme Court declared in an often-quoted statement, the university “classroom is peculiarly the marketplace of ideas.”3
On the other hand, those schools also empathize with the concerns expressed by members of their campus community about speech that marginalizes them, provokes anxiety or anger, or otherwise interferes with the educational process. Those schools want their students, faculty, and others to feel welcomed, included, and valued. And they do not want to sacrifice those important goals on the altar of expression that makes no apparent contribution to the marketplace of ideas or the enterprise of learning.
Granted, such a middling approach may appear intellectually incoherent or even disingenuous. It seems Janus-faced to make strident declarations about the importance of free expression—but then to carve from that principle multiple exceptions of indeterminate scope and meaning. What these policies give in one section, they frequently take away in others.
Realistically, however, it is not surprising that private schools sometimes exercise the latitude that the law leaves them. To the contrary, it would be hopelessly naïve to expect every such school to reject all of the luxurious leeway that its private status affords. Rather, the remarkable fact is that so many colleges and universities forgo so much of that freedom by voluntarily subjecting themselves to a collection of norms that the law does not mandate. That they do so speaks volumes about the moral force of the values that free expression advances, particularly in the higher education context.
Internet Platforms
When in 1967 the Supreme Court singled out college classrooms as “peculiarly” the marketplace of ideas, the internet did not exist. And one might reasonably wonder whether online forums have supplanted universities and public squares as the places within our society where that marketplace operates in its freest, least regulated, quintessential form. In that spirit, half a century later the Supreme Court flatly declared: “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace . . . and social media in particular.”4
Because of the special importance of these platforms in the exchange of views, public discussions about them tend to recreate the same debates that characterize conversations about the First Amendment—even though they are private entities and not arms of government. Free speech enthusiasts therefore argue that these platforms should allow for the unimpeded flow of information and ideas, should not manipulate the search for truth, and should remain neutral in those exchanges—just as the government must. Tulsi Gabbard’s ill-conceived lawsuit against Google reflects such a point of view.
Social media skeptics, however, argue that these platforms have a responsibility to exorcise certain speech (and speakers) from their online environments. Consistent with that demand, those platforms adopt terms and conditions of usage, purge specified content, and banish offending users. Some restrictions mirror First Amendment doctrine—for example, prohibitions on true threats and obscenity. Other regulations clearly would not pass muster under the First Amendment if it were applicable. Public pressure for still greater constraints on these “marketplaces” continues unabated.
The situation is rendered more complex by the fact that an increasing number of government actors and entities now use these platforms for official purposes. The paradigmatic example is President Trump, who so extensively deployed his Twitter account for government business that the National Archives treats his tweets as presidential records. When President Trump blocked certain individuals from his Twitter account based on their viewpoint, a federal court ruled that he had violated the First Amendment because he had transformed his part of this private platform into a public forum that required open access.5
What do these developments signify with respect to internet platforms? They mean that, in a practical sense, we may be engaged in the process of revising the latitude afforded to speech in this country—without actually rewriting the First Amendment. Consider: the Supreme Court is almost certainly correct when it says that cyberspace has become the most important place in our society for the exchange of ideas and that this holds true of social media in particular. But that “marketplace” is private and therefore subject to popular pressure. If enough users object to the use of profanity on a platform, then its owners can bow to the pressure and prohibit such language (and, presumably, exile anyone who uses it). If enough users think a particular ideology too offensive to get any airtime on a platform, then its owners can fall in line and forbid its expression (and, presumably, excommunicate anyone who dares to think that way).
First Amendment doctrine does not endorse the so-called “heckler’s veto,” where those who dislike speech have the power to silence it by loudly objecting. In the circumstances just described, however, the heckler’s veto prevails. Censorship wins. Unpopular speech loses, precisely because it is unpopular. The majority gets to decide whose voices may be heard and whose will be stifled.
But, of course, the whole point of the First Amendment is to place such matters beyond majority control. After all, the majority does not need the First Amendment, because the majority will not vote for self-censorship and impose limitations on the speech it favors. The First Amendment exists in order to protect those ideas that do not have the majority’s support—including ideas that might even provoke the majority’s strenuous opposition.
When a public official or entity uses a privately owned online platform for official government purposes (as in President Trump’s Twitter account), First Amendment doctrine may apply. But, putting those extraordinary cases aside, what happens on those platforms largely will be left to the Everyday First Amendment—which is nothing more than a social norm that consists of whatever most of us think it should. In this sense, some of the most important developments for free expression in our time are coming not from the law of the First Amendment but from the conventions of the Everyday First Amendment—conventions that are still under construction, with great uncertainty about who gets to serve as architect.
Endnotes
1. Tulsi Now, Inc. v. Google, LLC, No. 2:19-cv-06444-SVW-RAO, 2020 U.S. Dist. LEXIS 41673 (C.D. Cal. Mar. 3, 2020).
2. 721 F. Supp. 852 (E.D. Mich. 1989). For a fuller analysis of the case, see Len Niehoff, Doe v. University of Michigan: Free Speech on Campus 25 Years Later, 71 U. Miami L. Rev. 365 (2017).
3. Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).
4. Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017).
5. Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 237 (2d Cir. 2019).