<figure>
 <img src="https://media.eaglewebservices.com/public/2019/11/1573872297806.png" alt="Gene Policinski is president and chief operating officer of the Freedom Forum Institute. " />
 <figcaption>Gene Policinski is president and chief operating officer of the Freedom Forum Institute. </figcaption>
 </figure>When it comes to free expression and the First Amendment, it’s 
important for us to know when it protects what we say and write — and 
when it doesn’t.Case in point: Proposed Arizona House bill HB2124, “related to access to online content.” The sponsor, state Rep. Bob Thorpe,
 proposes to allow users or the state attorney general to sue an 
internet site that edits, deletes “or makes it difficult or impossible 
for online users to locate and access” content on the site “in an easy 
or timely manner for politically biased reasons.”The bill is in line with complaints now fashionable among political 
conservatives nationwide that online platforms and social media sites 
from Google to Facebook to Twitter and others somehow exclude or 
downplay their views while emphasizing liberal viewpoints.Nothing wrong with raising such concerns. The inner policies and 
algorithms of these web behemoths largely generally remain hidden — and 
the entire online world is simply too new and ever-changing to provide 
an accurate portrait from the outside.So, in effect we don’t know what we’re not seeing when we search or 
use such sites, and those companies are free to set their own practices 
and rules on what we do see or post. Whether for altruistic or political
 motives, proposals such as the Arizona legislation would change that — 
except that the First Amendment rules out such government intervention 
in a private business.The First Amendment guarantees against content or viewpoint 
discrimination — and by extension, access to information — apply to 
government, not private individuals or companies, which have their own 
First Amendment rights to decide what they will or won’t say and post. 
And even legislation cannot empower individuals (or attorneys general) 
to override that constitutional protection by using civil penalties 
rather than criminal law — see the old legal adage, “you cannot do by 
the back door what you cannot do by the front door.”Moreover, do we really want to override the First Amendment with such
 “open access” laws? Turn to another adage — the “law of unintended 
consequences.” Requiring internet providers to permit unrestrained 
access and right to post material denies such companies the ability to 
respond to their consumers’ demands on materials that can range from 
offensive to repulsive. Thorpe’s bill excludes libelous or pornographic 
material, but what about currently banned content on most social media 
sites, such as videos that show public assaults or are intended to bully
 or harass? Would internet companies and social media sites be mandated 
to carry deliberate misinformation about health issues?There is a small window in the wall of First Amendment protection 
that could possibly permit regulation of private online companies, 
called the “public function exception.” In effect, it turns a private 
concern into a government operation when performing an “essential 
government function.” The exception rests on a 1946 Supreme Court 
decision, in Marsh v. Alabama, involving a so-called “company town.” The
 court reasoned that since the town functioned as a government entity, 
not a private enterprise, it had become one.But the court has refined its ruling through the years, and in 1974 
held that such a conversion takes place only when the private concern is
 providing services exclusively done by government. Clearly, providing 
an online platform or a social media site fails to meet that test.Some critics of the current social media policies argue that those 
sites are effectively a “digital public square” by virtue of their 
ubiquitous presence in modern life. Some reports say that more than 
seven in every 10 Americans used social media sites in 2018 — and that 
the number increases each year. But the very nature of the web, in which
 start-ups and competing sites of all kinds arise constantly, would also
 seem to prevent isolating even dominant companies for such a 
quasi-government role with the required “exclusive provider” condition.As shown in other examples where First Amendment protections come 
into conflict with practices or actions that offend, or seem to run 
counter to the “marketplace of ideas” concept of the widest exchange of 
ideals or viewpoints, the “court of public opinion” often functions more
 effectively — and more quickly — than legal action or legislation. 
Public discussions and resulting social pressures to combat online 
bullying or videos showing assault or even murders have demonstrably 
changed those private provider policies on what is posted and permitted,
 for example.A shortcut through First Amendment protections may seem an expedient 
method at the time — but for very good reasons, free expression 
advocates should resist “quicker” solutions for some, in the name of 
protecting those long-term freedoms for us all.Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at&nbsp;<a href="mailto:gpolicinski@freedomforum.org" target="_blank">gpolicinski@freedomforum.org</a>, or follow him on Twitter at&nbsp;<a href="https://twitter.com/@genefac" target="_blank">@genefac</a>.

FIRST FIVE: Focus on when the First Amendment protects – and doesn’t