Social Media Censorship and the First Amendment Blog
In my last blog, I wrote about a recent Texas law banning censorship by social media platforms and the ensuing court appeals. The argument being made in court is whether big tech has a right to “censor” those who hold viewpoints not approved by the media platform. The bottom-line question is do the big tech platforms have a First Amendment right to censor what people say on their platform or do the people have a First Amendment right to say what they want without censorship.
In the U.S. Court of Appeals for the 5th Circuit decision Judge
Andrew Oldham wrote, “We reject the Platforms’ attempt to extract a
freewheeling censorship right from the Constitution’s free speech guarantee.
The Platforms are not newspapers. Their censorship is not speech.”
Judge Edith Jones concurred in the 2-1 decision. She called
the tech companies’ argument that the First Amendment protects social media
platforms’ ability to curate content, much like a newspaper does “ludicrous.”
However, the third judge on the panel, Judge Leslie
Southwick, dissented. He argued that social media platforms are indeed similar
to newspapers. “The First Amendment, though, is what protects the curating,
moderating, or whatever else we call the Platforms’ interaction with what
others are trying to say. We are in a new arena, a very extensive one, for
speakers and for those who would moderate their speech. None of the precedents
fit seamlessly. The majority appears assured of their approach; I am hesitant.”
Kevin M. Goldberg, First Amendment Specialist at the Freedom
Forum states that regulating speech on social media goes against the First
Amendment. He explains that attempts to hold social media platforms accountable
must meet two requirements. One is a compelling government interest and two it
must not infringe protected speech. Currently, neither of those requirements
are being met. Consequently, those who promote online regulation are using
different tactics such as states introducing bills to stop misinformation. Those
bills have failed because the First Amendment protects the general right to
make false statements (with the exception of defamation and false advertising).
As mentioned earlier bills to fight against social media
censorship are promptly challenged in court. The common thread of the state
bills that challenge the social media companies is that they attempt to
reclassify the platforms as “common carriers” (such as airlines, phone
companies, public utilities.) Two state bills seek to designate social
media as a “public forum” (such as a park or a sidewalk from which to speak).
One state tried to attach “public accommodation” (such as retail stores,
educational institutions, and recreational facilities) status as well.
Common carriers are service
providers that must serve all customers equally.
Usually this is because the service provider is the only provider of that particular service. The common carriers are regulated by the government. A rebuttal to the common carrier argument is that unlike public water that everyone needs and is charged the same price, social media is free, is a service from which users do not need protection, and is an optional service.
As for the public forum, if
the government were to recognize social media as a public forum, every person
would then be treated equally and there could be no viewpoint discrimination.
It could be interpreted that the digital media, although provided by private companies,
is the modern-day public forum. Goldberg states that only the government can
designate its own public forum and courts have already decided that public
businesses hosting a public forum do not automatically constitute a public
forum.
Discrimination is prohibited
by law for public accommodations, to which some liken social media. However,
even if the public accommodations justification were used, the law only
protects certain classes of people and political belief or speech is not one of
them.
Dozens of states are
considering bills to limit social media’s censoring or banning. In this
uncharted territory the debate continues on how these limitations would affect
First Amendment rights. Stay tuned.
https://www.newsweek.com/yes-big-tech-are-common-carriers-opinion-1711049
https://www.usatoday.com/story/tech/2021/12/01/judge-blocks-texas-facebook-youtube-law/8831600002/
Censorship has definitely been a sensitive subject recently and everyone seems to have a certain take on it. I have found it interesting to read about articles where censorship has been an issue and see what the court has to say. I feel like with that, the court has found key principles that they use to determine freedom of expression/speech. For social media, since they are private companies, they have the right to choose what can be on their platforms. This does not always make it okay but with those blurred boundaries, where do they draw the line to when it comes as a threat to free speech. This is a topic I would be interested in doing more research and learning about.
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