Thursday, April 28, 2022

On free speech, federalism, and why Berenson v. Twitter matters more than ever

I’m writing this on my way to San Francisco for the first hearing in Berenson v. Twitter. San Francisco, as you may know, is in California. And California has some of the strongest free-speech protections of any state. Yes, California, ultra-liberal California.

The free speech guarantee in California constitution makes the First Amendment look weak. Section 2 of Article 1 (behind only Section 1, “All people are by nature free and independent…”) reads:

Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.

And California courts have interpreted this provision not just against state and local governments, but against corporations. California has a long history of decisions requiring large private companies to allow speech on their properties.