The First Amendment in the age of social media

Revision in progress

-- By LaraNurick - 22 Apr 2018

Background

The First Amendment guarantees Americans freedom of expression by prohibiting government action restricting the rights of individuals to speak freely. It serves to ensure that speech, including "vehement, caustic, and sometimes unpleasantly sharp attacks" critical to political choice, is heard. As the Supreme Court recently reaffirmed, "the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought we hate'". The US conception of the free speech protection espoused by the First Amendment is arguably the most expansive in the world, and correspondingly, its tolerance for hate speech, the highest.

The problem

The First Amendment prohibits governmental interference with free expression and is not understood to attach to private action restricting speech by nongovernmental actors. This view of the First Amendment as inextricably linked to governmental public action is problematized in today's cyber world where significant political and presidential communication occurs via, and consequently may be censored by, private social media companies. Whereas its application historically distinguishes "between public institutions which are bound by the First Amendment and private ones which may retain stronger rights to set their own rules", given that today's governmental actors have largely migrated their activity to public forums owned by private companies online, "the legal [bright] lines are more tangled" and the proper reach of the First Amendment is muddied.

This is exacerbated by the fact that public discourse on social media platforms is becoming subject to increasing private regulation at an international level with the introduction of anti-hate speech laws like Germany's NetzDG law, which requires social media platforms to police online speech and delete offensive or hateful posts on their platform within 24 hours or risk significant fines.

Given the online coalescence of public and private, questions arise as to the extent, or lack thereof, of free speech protection on social media and the consequences for the new age speech environment if a select group of internet giants is given free rein to determine its limits.

Social media vis-à-vis the First Amendment

As the boundary between public and private has eroded in today's climate, recent US decisions "suggest that the rigorous protections afforded to freedom of speech generally extend to the digital realm as well", although they are less explicit about whether this extension applies to social media platforms owned by private companies. Nevertheless, as this position is maintained, according to Professor Richards, on the basis that "the way politics…occur right now…we cannot have a functioning First Amendment that doesn't take First Amendment in a digital context into account", it would seem that the First Amendment may extend to social media platforms as these constitute a primary 'digital context'.

I don't see how this works. Someone says the First Amendment must function in "a digital context," and this is sufficient to suggest that the state action requirement has disappeared? Some steps needed to be spelled out, at a minimum, I think.

The prevalence of social media within today's politics is indisputable and is evidenced by its highly influential role during the 2016 US Presidential Election, when Facebook occupied the third ranking news source for the presidential campaign. Moreover, despite the recent Cambridge Analytica revelations of the Russians' intervention in this election, social media continues to be used by governments and public officials to facilitate political speech and further their agendas.

But that was always true of newspapers and electronic broadcasters, too. Overcoming the requirement of state action doesn't happen so easily.

As the recent Packingham v. North Carolina emphasized, "all 50 governors and nearly every member of Congress has established a Twitter account to communicate with their constituents". The majority concluded that "while in the past there may have been difficulty in identifying the most important places for the exchange of views, today the answer is clear. It is cyberspace-the 'vast democratic forums of the internet' in general, and social media in particular". Accordingly, in finding that "foreclosing access to social media…prevents users from engaging in the legitimate exercise of First Amendment rights", the court seems to have analogized social media to traditional public forums like town halls and public parks. This suggests that when social media is used "under the color of the state", the government, or for public purposes, the First Amendment may extend to such communications.

No, not quite. You haven't given any authority for such a proposition. Where you needed to look was the cases from Marsh v. Alabama through Logan Valley_ and _Lloyd Corp. v. Tanner to Pruneyard. If there are going to be holdings such as those you envision, prohibiting the private party from making decisions prohibiting speech that the state could not constitutionally impose, those holdings must be expressed against this background. It won't be easy.

This extension seems warranted as it has become clear that the US government, like other powerful governments, wields significant power over private social media platforms and often pursues, peruses and uses the information collected by the company. Accordingly, any distinction between private and public forums vis-à-vis social media seems to have collapsed.

That's a completely different claim, for which no constitutional ground seems evident.

Assuming therefore that the extension of the First Amendment to social media is merited, the current framework is undemocratic, suboptimal and lacking transparency and accountability. As Twitter's CEO, Dick Costolo admitted in 2015, "we suck at dealing with abuse…on the platform". Presently, administrators from a small number of private companies that dominate the social media space, and who will submit to the demands of certain governments, are tasked with the censorship of online speech.

In dealing, as private parties, with foreign governments, what relevance has the First Amendment in any respect?

Current framework

Social media platforms continue to self-regulate the content on their platforms and "exercise significant discretion to censor expression or terminate service altogether". On Facebook this is achieved via Community Standards where Facebook broadly defines the content it may remove if it deems it to constitute hate speech.

A ProPublica? analysis examining Facebook's practices found that it "fails to evenly enforce its own community standards…mistakenly flagging frank conversations about sexism or racism as hate speech". This illustrates the practical difficulties involved in private corporations defining hate speech and enforcing it online across different jurisdictions whose definitions diverge.

But if other legal regimes are going to make rules, it will be their definitions, not some company's internal policy definitions that will be relevant, right? No one forcing the companies to behave in what that system defines as legal ways is going to delegate to them the fundamental definition of harmful material the legal system is regulating.

On average, Facebook deletes approximately "66,000 hate speech posts a month worldwide" and closes over 1 million accounts every day in "what may well be the most far-reaching global censorship operation in history". Notwithstanding the potential impact on speech, not only are the parameters of this censorship murky, but there is also no formal appeals process to contest decisions.

No one wishing to speak freely in the world should use the platforms to speak. They have nothing to offer that a self-operated webserver doesn't offer the speaker, who is then free to say whatever to the world she wishes to say without any possibility of platform censorship. The conflation of the platforms with the Net, or even the Web, is not analytically justifiable. Whatever logic we are going to use on the facts will certainly take the availability of alternate means of communication into account. So no legal conclusion based on the idea that the platforms are the only games in town will have the slightest credibility.

Conclusion

While Germany has responded by regulating the platforms' boundaries of permissible speech with NetzDG? , its 24-hour time limit and sanctions likely exacerbate enforcement issues as it encourages overcautious censoring. It also fails to overcome the fundamental problem that the ultimate censorship power remains with unaccountable tech companies, which should be the primary issue that regulation must address.

Not unless there is some reason why the law should regard the platforms as natural monopolies. On the contrary, the law should regard the platforms as temporarily anomalies resulting from bad public policy, which should be to educate and empower individuals to use non-surveilled, self-sustaining, technologies of personal expression and sharing that do not empower private parties. At any rate, it would be useful—if that's wrong—to read the part of the argument not apparent here, in which I can learn why that view is wrong.

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