The President Who Would Bring Back the Sedition Act

(Bloomberg Opinion) -- The president of the United States calls the press “the enemy of the people.” Does he also have a problem with freedom of speech?

In a recent tweet, President Donald Trump complained that if you google “Trump news,” you see “only the viewing/reporting of Fake News Media.” That means that “they have it RIGGED, for me & others, so that almost all stories & news is BAD,” and that “Republican/Conservative & Fair Media is shut out.”

In Trump’s view, “Google & others are suppressing voices of Conservatives,” and so “controlling what we can & cannot see.” He thinks that is “a very serious situation” and promises that it “will be addressed!”

These are serious charges. Larry Kudlow, director of the National Economic Council, has confirmed that the White House is “taking a look at” whether Google’s search engine should be regulated.

The First Amendment applies to the government, not to the private sector. It forbids government from “abridging the freedom of speech.” As Justice Antonin Scalia famously put it, the First Amendment does not allow public officials to suppress speech “because of disapproval of the ideas expressed.”

In Miami Herald Publishing Co. v. Tornillo, decided in 1974, the Supreme Court made it clear that if a publisher features one point of view and excludes another, the government is not allowed to step in to produce some kind of balance. 

The case involved an effort by a political candidate to take advantage of a state law giving him a “right of reply” to a negative editorial. The court acknowledged the growing concentration of the publishing industry.

Nonetheless, it ruled that the First Amendment did not permit government to correct what it saw as unfairness. For that reason, the “right of reply” law was unconstitutional.

True, we cannot exclude the possibility that a dominant search engine might be treated differently. Suppose that Google really did make a self-conscious effort to skew its results in a specific direction, using an algorithm designed to favor Democrats. Because of Google’s unique position, it is not clear that courts would strike down a sufficiently neutral government response meant to prevent deliberate skewing.

But that’s all hypothetical. President Trump is focused on one thing: stories and news that he sees as “BAD,” in the sense that they are critical of him. His complaint is not based on a serious study of Google’s algorithm, but instead on a recent post from a conservative blog, PJ Media, whose author candidly acknowledges that her results are “not scientific.”

In other words, Trump has no evidence at all to justify a regulatory effort by the federal government toward “addressing” Google’s supposed effort to “shut out” media that are “Republican/Conservative & Fair.”

Nonetheless, his principal economic adviser is exploring whether to recommend or to go forward with regulation. 

In essence, the president of the United States is accusing Google of a form of sedition, and calling on his government to punish it. He might want to consider the text of the Virginia Resolution, written by James Madison in response to the Alien and Sedition Acts.

Madison said that an attempt to restrict free speech “more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.”

That was true in 1798. It’s no less true now.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of "The Cost-Benefit Revolution" and co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

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