I have an article in The UnPopulist today about the Supreme Court hearings in the NetChoice cases. Those are the cases about the Florida and Texas laws seeking to dictate to social media companies what they are and aren’t allowed to say on their websites. During the oral argument, Justice Alito tried to claim that when the editors of a website refuse to publish something, that’s akin to the government throwing anti-war protestors in jail. And I argue that that’s not only a pernicious ly false analogy, but an attack on one of the most basic principles of constitutional law: the distinction between public and private action. Here’s an excerpt:
The distinction between coercive and non-coercive relationships is philosophically profound and deeply rooted in American legal history. It goes back at least to Thomas Paine, who wrote in the first sentences of Common Sense that “some writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. … The first is a patron, the last a punisher.” Paine meant that the private realm (which sociologists call “civil society”) is governed by competition and cooperation—and that fundamentally distinguishes it from the public or political realm, which involves coercion. In the private realm, people act by voluntary agreement or disagreement—discussing, negotiating, buying, and selling; they’re “patrons,” in Paine’s words. The public or political realm, by contrast, is the domain of the state, which can legally use physical force, and prohibits citizens from doing so; which makes it a realm of “punishers,” as Paine put it.
Drawing this line shields people against violence by excluding the use of force from ordinary life. That ensures that in the private realm of civil society, we can engage in all sorts of interpersonal relationships—we can form clubs, associations, businesses, newspapers, and websites—and we can argue, protest, and engage in disagreement: sometimes raucous, sometimes even hateful. But the one thing we can’t do is coerce.
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