Silly Protesters! Free Speech is for Tech Companies, Not Palestinian Human Rights Activists

Megan Iorio is Senior Counsel at the Electronic Privacy Information Center.

Over the last several weeks, university administrators on dozens of campuses engaged in a historic crackdown on speech. The repression of the Palestine solidarity encampments – in some cases involving brutal police tactics and arrests – illustrates the gulf between the ideals of the First Amendment and the actual practice of free speech in the United States. The freedom of individuals to assemble, associate, and express their opposition to the viewpoints of those in power is fundamental to the concept of free speech, yet the discourse has treated these rights as subservient to the rights of university administrators to enforce rules about the use of campus space.

If the students were instead tech companies, they might have an easier time asserting that they have a right to speak. At the same time as the speech rights of Palestinian human rights activists are being questioned and denied, tech companies are successfully convincing courts and many in civil society that free speech means that they have a right to be free from regulation. The contrast between how student and tech company appeals to freedom of speech have been received shows how the principle is being turned on its head: instead of a tool for individuals to challenge the power of institutions, free speech has become a tool for institutions to entrench their power over individuals.

Follow the Rules and Don’t Talk About Palestine

The Palestine solidarity encampments that took hold on college campuses across the country are examples of core political speech. The protests were a response to months of universities punishing and silencing supporters of Palestinian human rights. Students seized public spaces on campus to make their voices heard, demanding that their institutions end their complicity in Israel’s destruction of Gaza by divesting their endowments from Israel. At some schools, the students disbanded their encampments after successfully pressuring administrators to agree to transparency and divestment measures. But the vast majority of schools refused to engage with the protesters and instead sought to silence them with swift and sometimes violent police repression.

It is little surprise that university administrators reacted so forcefully against Palestinian human rights supporters. Pro-Palestine speech has long been disfavored in the US, and this disfavor is deeply embedded in the country’s institutions. Universities are no exception. They have a long history of punishing and censoring students and faculty concerned for Palestinians. Since Hamas’ attack on Israel on October 7, 2023, administrators have also been under pressure from donors and others to squash student sympathy for Palestine. Most notably, members of Congress have dragged university presidents to hearings three times in transparent attempts to jawbone administrators into suppressing campus speech, and Speaker of the House Mike Johnson (R-LA) made a controversial appearance at Columbia University to denounce protestors. Legislation that would falsely equate any speech critical of Israel with antisemitism passed the House and is now in the Senate. If this bill were to become law, it would further pressure universities to crack down on student speech about Palestine.

It is in such circumstances, when individuals seek to challenge the most entrenched ideas of power, that freedom of speech is most needed. Freedom of speech, if it means anything, should mean that individuals can challenge power with their words and with the expressive actions of assembly and protest.

Or so you would think. Despite much of this description of free speech being in the plain text of the First Amendment, the freedom of individuals to speak and to elevate their voices through protest is tightly constrained by constitutional doctrine that gives institutions wide latitude to manage dissent through content-neutral time, place, and manner restrictions. Anodyne rules like those that restrict the use of public spaces become tools for those in power to dictate when, where, and how their power can be challenged. When an institution wishes to squash dissent, it needs only to invoke one or more of these rules to justify suppression of speech while seeming to uphold the principle of free speech. Institutions can even pass new rules as excuses to crack down on speech, such as when the University of Virginia banned tents essentially concurrent with a police action that violently cleared the school’s encampment.

For these reasons, the discourse around the suppression of the Gaza student protests amounts to a pot of weak tea about the enforcement of campus rules, even as those responsible for the crackdowns made clear that campus rules were a mere excuse for policing a disfavored viewpoint. Calls for the even-handed treatment of viewpoints also fall short. Of course, the rules haven’t been applied to “both sides” equally. UCLA’s decision to order police to dismantle the school’s encampment a day after it failed to respond to a violent attack on students in the encampment by a group that claimed to support Israel is perhaps the starkest example of this. But focusing merely on the “fair” application of the rules misses the key point that Palestinian human rights activists, like many antiwar activists before them, have resorted to encampment-style protests because they believe there is no other way to force schools to take seriously demands to divest than to physically occupy space on campus. Supporters of the status quo do not need to set up encampments because their views are already reflected in the leadership of their institutions. A focus on rule enforcement also fails to acknowledge that enforcing campus rules and keeping certain people “safe” from facts they don’t want to hear is not more important than confronting the role institutions play in human rights violations, and they should not be used as an excuse to avoid the substance of a discussion the US desperately needs to have about the humanity of Palestinians.

Tech Companies Have the Superior Claim to Free Speech

What is truly ironic about this moment in the US is that there seems to be much more hostility to the idea that individuals have a right to speak about Palestine than the idea that tech companies have a First Amendment right to be free from regulation. The Founding Fathers probably would have looked confused at the suggestion that free speech means tech companies have a right to build private surveillance empires and manipulate and harm users without recourse, but this is a constitutional theory that has gained much traction and support in recent years.

Last fall, the Big Tech trade group NetChoice successfully convinced a California federal court that tech companies have a First Amendment right to collect, use, and disclose user data, and that privacy laws likely violate this right. NetChoice is also trying to convince the US Supreme Court that basically all platform design decisions are protected speech, which could include their decisions to collect extensive user behavioral profiles and to use these profiles to manipulate users. In a separate Ninth Circuit case, X (formerly Twitter) is arguing that laws that require disclosures about companies’ content moderation decisions violate free speech in their entirety because of the mere possibility that the government might use these laws to influence how companies moderate their platforms. This is the equivalent of the student protesters challenging the entire validity of trespass laws because they could (and indeed are) used to influence the messages spread on college campuses—an argument that would be a complete non-starter under constitutional law.

The idea that tech companies should have such extensive, maximal free speech rights is not nearly as controversial as it should be. Even important civil liberties groups — including the ACLU, the Electronic Frontier Foundation, and the Reporters’ Committee for Freedom of the Press — have, to varying degrees, supported Big Tech’s campaign for broad speech protections. For some of these groups, the justification for recognizing tech company speech protections is to secure individual speech rights. Companies that act as intermediaries for individuals’ speech make decisions that impact individual speech, and so regulation needs to create the right incentives to ensure that individual speech is not harmed. But individual speech should be protected directly in constitutional doctrine, not by proxy. The way to protect individual speech is for civil liberties groups to bring their own challenges against tech regulations that infringe individual rights, just as we did in ACLU v. Reno, rather than filing briefs supporting Big Tech’s push to secure immunity from regulation.

Tech companies will assert their newly bestowed constitutional rights whether or not they align with individual interests, and there is a significant risk courts will rule in their favor. Commercial speech doctrine was originally justified on the rights of individuals to receive truthful information from companies, but is often used to justify rulings that conflict with individuals’ interests. An apt example is Sorrell v. IMS Health, where the Supreme Court struck down a law restricting pharmaceutical companies’ collection and use of physician data for marketing despite the fact that physicians wanted the state to restrict access to their information and the law did not impact physicians’ ability to receive marketing from the companies. Now, Sorrell is the principal case Big Tech relies on to attack laws that limit commercial surveillance and targeted advertising, even though such regulations have long had popular support. The court that struck down the California Age Appropriate Design Code relied almost exclusively on Sorrell.

Overbroad protections for tech intermediaries are also not even guaranteed to protect individual speech. Corporate speech rights are like a trickle-down model of free speech, and just like in the economics model, there is a good chance that speech protections for tech companies will not trickle down to individual users. Tech companies can permissibly restrict much more speech than the government because they are not directly subject to the First Amendment. Indeed, tech companies are very much like universities in how they exert power over individual speech, and some, most notably Meta, have suppressed speech about Palestine. Tech companies are also less accountable than the government because they do not owe anyone due process rights unless they make a promise to provide them. Conceding that tech companies have speech rights against transparency obligations is especially problematic because it would make it very difficult to provide users with due process rights through regulation.

Lastly, platforms do a lot more than mediate speech, and extensive speech rights for tech companies can obstruct use of the democratic process to address the harms platforms cause. The broad speech protections that tech companies claim would make it nearly impossible for legislatures to pass enforceable laws addressing privacy, addictive and manipulative design, and algorithmic harms. And it wouldn’t just be direct regulation that would be off the table. Soft-touch measures that require companies to assess how their design choices might cause harm and to disclose information to researchers and to users would be subject to heightened constitutional scrutiny.

We have seen how broad immunity creates the wrong incentives for tech companies in the context of Section 230. Tech companies say that Section 230 gives them immunity from laws that are meant to keep consumers safe, and many courts have sanctioned these arguments. As a result, tech companies have little incentive to design their products in ways that prioritize user safety. Congress and courts are beginning to rethink overbroad Section 230 protections for this and other reasons, but constitutionalizing these ideas as NetChoice hopes to do could short-circuit efforts to reform platform immunity rules.

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Free speech is in crisis. While students’ speech rights are being trampled by universities with support from many commentators and politicians alike, tech companies are hijacking freedom of speech with a concerning degree of success. A course correction is sorely needed, and the first step is to acknowledge that something has gone terribly wrong with the concept of free speech when corporations have a stronger claim to it than individuals.