A new opinion before the Sixth Circuit, if it stands, has terrifying implications for First Amendment rights in the Age of Algorithms. As early as 1997, the Supreme Court noted that social media sites are the 21st Century Equivalent of the Town Square of yore. Reno v. ACLU, 521 U.S. 844, 868 (1997). The problem is these town squares are owned by private enterprises, and thus do not fall under the First Amendment protections afforded citizens against government censorship.
Now, the Sixth Circuit has issued a ruling finding that the alleged rights of a person who controls a forum trump the rights of any individual who is required to sit in that forum, even if that forum is a public setting. In a decision handed down last week, the Sixth Circuit ruled that a professor at a public college could refuse to identify a student in his class by that’s student’s self-identified gender, on the grounds the professor had First Amendment religion and free speech rights to call that student by whatever gender the professor chose. Meriwether v. Hartop, Case No. 20-3289 (Sixth Cir. 2021), https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0071p-06.pdf. The decision focused solely on the alleged right of the professor to force his personal religious ideology on his entire class. Worse, that professor was empowered, based on his own religious belief, to deny the right of a student in that class to select her own gender. The Court actually held that the college should have accepted the professor’s suggestion that he simply call the student by her last name, so as to deny her gender identification, as if that was a reasonable accommodation. At no point did the Court consider the impact of this ruling on the student herself, or why a publicly employed professor can foist his religious beliefs on his entire class. Apparently, so long as a public employee can claim his religious beliefs support his behavior, he can aim hate speech filled with prejudice, bigotry and bias at any person seeking the public services or benefits the public employee is being paid to offer.
If this ruling stands, it can be the death knell to free speech and religious liberty in the Age of Algorithms. The Court’s ruling means that when an individual is control of a forum, that individual can dictate the religious, moral and ethical beliefs of every person participating in that forum, notwithstanding the personal or profound the beliefs of those participants might be. In the Sixth Circuit case, that forum was public property and the individual controlling the forum was a professor paid with public funds. When the forum is, at best quasi-public, such as Facebook, YouTube or Twitter, and the control over forum postings is in the hand of a private-enterprise algorithm, the result is chillingly clear. Those wishing to espouse beliefs that do not fit the corporate stance on those beliefs, or even just the marketing plan of that corporation, will see their posts blocked by highly efficient (if not necessarily accurate) algorithms. Those in control of a forum will control the speech and religious beliefs of anyone in that forum, including a forum that is a social media site.
Those wishing to express their beliefs have only one remedy, just like the students in that class–they can leave. But, then the options are no options. Just as that small college has only one course on political philosophy, so too is there, for all practical purposes, only one YouTube and one Facebook. If one has to leave the town square of the Age of Algorithms in order to avoid First Amendment suppression, then the need to leave is itself suppression of First Amendment rights. Thus begins the death watch of the First Amendment?
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