Are Social Media Platforms Infringing On Our First Amendment Rights?
Are social media companies like Facebook and Twitter infringing on our right to free speech? This question has been debated time and time again, and the answer still remains unclear. These companies are private, therefore they don’t have to abide by our constitution, but should major companies in which some get most of their current events information really be limiting our access to multiple perspectives? This idea has become more and more prevalent in our current times… as we all know, former President, Donald Trump was banned from Twitter and Facebook after the political coup at the Capitol Building. There were many varying perspectives as to whether this was a good or bad thing, but whether you’re republican or democrat you can still think to yourself, the president of the United States (whether you liked him or not) had his voice taken away on two very informative and influential platforms. This event definitely begs the question of, should that be allowed? Should social media companies have the “supreme” power to determine the public's ability to view certain peoples opinions and statements? The answer might seem clear, but there are a lot of logistics and technicalities that could factor into not only whether or not they should be allowed, but also what makes it so that they have these rights in the first place?
Let’s start off with, from a moral perspective, is this right? Let’s disregard the law and logistics for a minute and dive into what this really means. Social media companies have the power to take down any kind of post that they consider to be harmful. Obviously when the post involves incitement of violence are crime it is a no brainer that a company like Twitter or Facebook would take it down, encouragement of criminal activity is something everybody can agree should be taken down. “When illegal content is reported, Facebook simply deletes it, rather than handing it over to law enforcement to be used in investigations as evidence”.(https://medium.com/alliance-to-counter-crime-online/cda-230-the-law-that-shields-facebooks-illegal-activity-43d4d511ad6#:~:text=When%20illegal%20content%20is%20reported,used%20in%20investigations%20as%20evidence) Posts of illegal action can undoubtedly be taken down without debate, free speech has its exceptions and publicly encouraging criminal activity is one of them. “Freedom of speech does not include the right: To incite actions that would harm others.”(https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does) The question comes in when people post about their opinions that don’t insight illegal violence or activity. Social media companies are still entitled to the right to take things down that are solely statements of opinion. In 2017, comedian Marcia Belsky was temporarily banned from Facebook for posting, “men are scum.” Many others followed in her footsteps after her account was suspended, getting themselves suspended too. “Facebook says that threats and hate speech directed towards a protected group violate its community standards and therefore are removed.” (https://www.vanityfair.com/news/2019/02/men-are-scum-inside-facebook-war-on-hate-speech) This statement was originally intended as a joke, but Facebook determined it severe enough to be removed and suspended the account that posted it. What gives Facebook the right to determine where the line is?
Social Media Company Laws
The Constitution states that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This means what we all know already, you can say whatever you want, whenever you want because you have the freedom of speech. But, you can’t exercise this right wherever you want for a couple of reasons. First being that, these are private companies, this means that they have all of the control over what happens on their platforms. “ Facebook, Twitter, the other social media platforms are not the government. They are private sector entities, and therefore, they have no First Amendment obligation to protect your freedom of speech.”(https://www.talksonlaw.com/briefs/does-the-first-amendment-require-social-media-platforms-to-grant-access-to-all-users#:~:text=But%20guess%20what%3F%20Facebook%2C%20Twitter,Amendment%20rights%E2%80%94their%20media%20right.) First amendment rights only apply to public property or property under government control, the government cannot apply their rules and rights onto companies that are separate entities. The second being that, these social media companies are entitled to the First amendment rights themselves. “These platforms are protected by the First Amendment but need not apply it to speech by their users.”(https://www.cato.org/policy-analysis/why-government-should-not-regulate-content-moderation-social-media#the-presumption-against-public-regulation-of-social-media) While social media company users do not have their First amendment right while on the platforms, the platforms themselves can tap into and access this right. This establishes that there are two ways in which social media users legally cannot exercise their free speech on platforms, but what impact is moderating speech having on its population of users?
While we can acknowledge that there is almost no work around to allowing unfiltered free speech on social media, to what scale does this affect the American population? We might think it’s not such a big deal, and who cares if I miss a few controversial tweets or posts, but there’s a much larger problem right beneath the surface. Pewresearch.org tells us that, “...today 72% of the public uses some type of social media.” (https://www.pewresearch.org/internet/fact-sheet/social-media/) This data was taken in 2018, that means that those percentages have only risen since then, about 232,560,000 people across the US use social media in one form or another. This means that the majority of our population is exposed to or can be exposed to the controversial posts and messages that surround social media, many of which are about political topics. Why does that matter? “According to a newly published Pew Research Center report 55% of U.S. adults now get their news from social media either "often" or "sometimes" – an 8% increase from last year.” (https://www.forbes.com/sites/petersuciu/2019/10/11/more-americans-are-getting-their-news-from-social-media/?sh=1687814f3e17) News on social media is not the most reliable, yet so many people rely on it to stay in touch. With Facebook and Twitter taking down posts that they find to be unsuited for their platform, is there a chance that important information and perspectives can be filtered out of people's feeds? What gives social media companies the right to control what current events people can and cannot see? We have given this major power to these private companies that can do whatever they want, relying on them as a source of information really might not be in the best interest of the public.
Possible Upsides/ Solutions
The question of how do we make it so that social media companies don’t totally obstruct our first amendment rights is something on a lot of people’s minds right now, and Facebook might’ve come up with an interesting solution. The Facebook “Supreme Court”, is a group of 20 people that Facebook hired to determine whether certain posts should be taken down, if certain accounts should be suspended, can change content moderation guidelines and can even overrule Mark Zuckerburg himself. Forbes claims that,“Facebook established an oversight board that it says is outside of Facebook's control, that can ultimately overrule Facebook's own policies on content management.” (https://www.businessinsider.com/meet-the-first-20-members-of-facebook-supreme-court-2020-5) Their court consists of lawyers, nobel peace prize winners, journalists, former UN members, law professors, former judges and even former Prime Minister of Denmark, Helle Thorning-Schmidt. This team has been assembled with experts in the field of law and the interpretation of it, and this could be a really good way for Facebook to put control of their content and guidelines management into the hands of people who actually know how to handle it and what to do. The social media companies themselves had no very informed way of managing their controversial content, tech experts cannot perform the same duties that this qualified group of lawyers and politicians will be able to. This idea could create a great compromise to appease the people and restore more of a sense of equity and fairness to the integrity of their platform.
Social media undoubtedly has much more power in its hands these days concerning their right to mediate content than it ever has before. While everyone is entitled to be upset about others' voices being taken away on such large platforms, we must all acknowledge that there is pretty much nothing that we can do about it. Social media companies have every right to wield this power, but also that they might not necessarily know how to use it to fit the best interests of their users. There is an unbalance that lies in that, especially when you consider how widespread and crucial social media has become in the average persons’ daily life. More than half of social media users rely on these platforms to keep them updated on current political events and happenings, and that is a responsibility that these companies simply haven’t been equipped for. Facebook has been pushing towards an interesting solution, and hopefully other companies begin to do the same because while our rights are out of our hands on private platforms that doesn’t mean that they should go unregarded.