Are Private Enterprise Thought Police Consistent with the American Republic?
Tags: debate
Published: 2020-11-10 23:49:47

Subtitle: Considering the legitimacy of private enterprise interference in the quasi-public sphere

I'm going to be upfront: this post is overtly political. As such, I apologize in advance if the "debate" tag is inappropriate. I initially had tagged "watercoolor" but upon a re-read, I became convinced this post is hardly "light-hearted". I have provided this warning at the very beginning so that anyone who does not want to read anything political can stop reading now.  

Still here? Then I will argue that the fiction sometimes presented that political discourse is outside the realm of "polite" discourse is a fiction that only works to the benefit of tyrants. For a free people, politics are not only a suitable topic, but a necessary one for the continued survival and vitality of us as a free people.

I have not before posted anything political in this community, so this will be a first. That said, it isn't pro-Democratic party or pro-Republican party (though it *is* pro Republic). 

First, a disclaimer. It goes without saying (but I'll say it anyway): the opinions expressed here are in no way reflective of dev.to, my employers past or present, or anyone else other than the natural person [a United States citizen] writing this post right now (me). I *encourage* disagreement, debate, etc. All I ask is that, in consideration of the policies of this platform, all such is civil and courteous. Dev.to is really a wonderful platform where really smart and creative people can engage in meaningful dialogue with each other in a way that has rarely been successfully implemented in any other community I've ever been involved with. In many ways, it reminds me of the ideal of the Symposium or Academy of Ancient Greece. I sincerely hope that this post spurs the same kind of meaningful and civil discourse I have come to know and love from this community.

So what do I mean by "pro Republic"? 

According to the United States Constitution, Article IV, Section 4: "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." 

This is known as the "Guarantee" clause. 

It is a common misconception that here in the United States we have a "democracy". More properly, we have a democratic republic.

One of the early cases (probably the earliest, but IANAL) concerning this clause is Luther v. Borden (1849). If you look up that case (i.e. https://constitutioncenter.org/interactive-constitution/interpretation/article-iv/clauses/42), it is mainly quoted for the ruling that the question of whether the form of government is "Republican" is "nonjusticiable". 

However, that seems to me a gross simplification of the *text* of the case, wherein if you take the time to read through the *lengthy* proceedings (https://tile.loc.gov/storage-services/service/ll/usrep/usrep048/usrep048001/usrep048001.pdf), you'll find this section:

"The institution of American liberty is based upon the principles, that the people are capable of self-government, and have an inalienable right at all times, and in any manner they please, to establish and alter or change the constitution or particular form under which that government shall be effected. This is especially true of the several States composing the Union, subject only to a limitation provided by the United States Constitution, that the State governments shall be republican...That the people are the sole judges of the form of government best calculated to promote, their safety and happiness...That, as the sovereign power, they have a right to adopt such form of government...That the exercise of this right, which is a right original, sovereign, and supreme, and not derived from any other human authority, may be, and must be, effected in such way and manner as the people may for themselves determine..."

To me this seems to codify a basic tenet of American government: the *People* of the United States are really the government. Our elected officials are merely representatives that we more or less "hire" to stand in for us, subject to the condition that they represent us faithfully. To put it much more bluntly, in America every one of "the people" are kings and sovereigns. 

It also seems to touch a fundamental element of American culture: *WE* are more than capable of deciding *for ourselves* how we are to govern ourselves. 

All of this brings me to my central question: Are Thought Police Consistent with the American Republic?

By "thought police" I mean any group that would, under whatever pretense real or pretend, seek to "protect" us from certain publications that they deem to be "harmful" to us. 

I would argue that it is overwhelmingly clear that thought police are *not* consistent with the American Republic. 

But, surely, in the Land of the Free, we don't have such entities operating do we? Until recently, I would have probably agreed with you. Or at least I would have agreed that we didn't have any significantly influential entities operating in such a manner. 

Sadly, recent events have brought me to the inescapable conclusion that we very much *do* have such entities. 

As many of you have probably seen if you've visited social media recently, any attempt to post certain publications or links that are deemed "misinformation" are resulting in a strange new phenomena: "fact check" warnings that all but directly state certain links are "misinformation" or "misleading".  

I would argue these are a subtle form of thought police. The issue at hand is not whether the links or information posted is, in fact, true or false. That is, IMHO, for the *reader* to determine in accordance with their own faculties for logical reasoning and investigation. 

Whatever their stated aims might be, such "fact checks" basically amount to a form of censorship: certain links are being treated differently than others, and this separate treatment is the very heart of the "chilling effect" that is prohibited the government by the First Amendment. 

Of course, social media is *not* the government. However, few would argue that it is not a public forum, which would seem to, at the very least, make it a quasi-public sphere. By "public forum" I mean a central place where communications take place between the people. In fact, I would go one step further and argue it has largely become *the* de facto public forum. *Especially* given the circumstances of the pandemic, are not online communities the new streets? As such, it seems that it is not wholly outside the realm of the Constitution, which is, after all, the "Supreme Law of the Land".

That these "fact checks" are being added without the user's ability (so far that I know) to even opt-out [I would argue they would need to be opt-in to even begin to past Constitutional muster] only solidifies my view that they are completely against the *spirit* of the First Amendment and, in fact, American Liberty. 

Now, whether such "fact checks" could be challenged as an actual violation of the *letter* of the First Amendment seems to be "no" (https://www.theverge.com/2019/6/17/18682099/supreme-court-ruling-first-amendment-social-media-public-forum). This seems inconsistent in that private enterprises *are* prohibited from certain conduct deemed unconstitutional (i.e. private enterprises cannot discriminate against protected classes such as race, disability gender, etc.), but again, IANAL.

For anyone who's read this far, what do *you* think? I look forward to a civil but engaging discussion in the comments below.