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A central American myth is that the First Amendment empowers speech from all racial and ethnic groups with equal force. It is a narrative that we heard from Facebook CEO Mark Zuckerberg at his Georgetown University speech in mid-October. The myth is so important to Free State Foundation founder and CEO Randolph May that he recently found the need to mansplain it to a civil rights leader.

NAACP Legal Defense and Education Fund president and director-counsel Sherrilyn Ifill wrote a Washington Post op-ed scrutinizing Zuckerberg’s speech, calling it a “profound misreading of the civil rights movement in America” — which it was. He name-dropped prominent Black historical figures and lectured the crowd about the First Amendment, freedom of expression and the Civil Rights Movement, all to defend Facebook's policy of not taking down politician-sponsored ads that contain false statements. If he had tried this stunt at Howard University, he would have been laughed off the stage.

May, in his Washington Examiner piece, mocked Ifill, saying that Facebook’s policy is not “real” voter suppression. But this is false. Facebook’s policy means that politicians can include misinformation in their advertisements that sow confusion about where, when and how to vote — a classic voter suppression tactic that we have seen repeatedly in our elections.

May also cited two Supreme Court cases, NAACP v. Patterson (1958) and NAACP v. Button (1963), suggesting that were it not for the First Amendment, there would have been no Civil Rights Movement. But the reality is, if the states of Alabama and Virginia had not attempted to use the judicial system to abridge the NAACP’s First and Fourteenth Amendment rights, those two cases would never have gone to trial.

This double-standard of preserving the First Amendment for white people, while suppressing it for Black Americans and their allies, reverberates throughout American history. Four centuries of the transatlantic slave trade, destroying Black and abolitionist newspapers, Jim Crow, mass incarceration, the consolidation of conservative media outlets, global misinformation campaigns and the Trump administration’s opposition to net neutrality have all worked to ensure that the First Amendment protects white people — particularly rich, white conservatives — more so than any other racial and ethnic group.

This has little, if anything, to do with the Supreme Court’s decision in New York Times v. Sullivan (1964). Far from establishing what Zuckerberg refers to as the “broad speech protections we have now,'' Sullivan merely set the “actual malice” standard for libel. In Hustler Magazine, Inc. v. Falwell (1988), Gertz v. Robert Welch (1984), Bill Johnson’s Restaurants v. National Labor Relations Board (1983) and Herbert v. Lando (1979), the Supreme Court repeatedly held that the First Amendment does not protect harmful or “valueless” false statements. Even conservative justices Samuel Alito, Clarence Thomas and Antonin Scalia agreed, in their U.S. v. Alvarez dissent that “the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest [emphasis added].”

No one should have to press criminal charges against Mark Zuckerberg and Facebook for suppressing votes. But if that is what it takes, so be it. We have come too far to place social media companies above the law.

Joe Miller

Writing since December 2016 · 1 story contributed