The Great Free-Speech Reversal

Indeed, the idea that private actors, not just government officials, might threaten the freedom of speech guaranteed by the First Amendment, as well as the other rights protected by the Constitution, was first suggested by big-government liberals, whom contemporary conservatives love to hate. In the early 20th century, progressive legal scholars such as Felix Cohen and Robert Hale argued against the notion that the Constitution protects rights including freedom of speech from only government action. Private corporations wield tremendous power over individuals lives and fortunes, and to overlook that power when interpreting the meaning of constitutionally protected rights, Cohen and Hale believed, would make no sense.

This argument eventually found favor with progressive justices on the Supreme Court during the New Deal and led the court to conclude as it did in the 1946 decision Marsh v. Alabama, for example that the First Amendment could prevent private corporations from excluding speakers from property they owned and controlled when doing so was necessary to ensure that the channels of communication remain free. In later decades, although the Court struggled to define exactly when and under what circumstances the First Amendment applied to private actors, it continued to insist that it did sometimes apply. In 1968, for example, the great liberal lion, Justice Thurgood Marshall, wrote an opinion that held that a shopping mall s private owner could not exclude protesters from the mall s passageways without violating their First Amendment rights. Only after President Richard Nixon appointed four pro-business conservative justices did the Supreme Court reject this view of the First Amendment, and insist that private corporations have no constitutional obligation to grant access to their property to speakers they dislike, no matter how powerful those corporations might be.

When Trump and other conservatives complain that the decision to remove the president from popular platforms violates his freedom of speech, they place themselves in strange company. They acknowledge, albeit only implicitly and perhaps opportunistically, that early-20th-century progressives were correct to worry about private power s threat to constitutionally protected liberties.

This recognition is welcome, if overdue.

via www.msn.com