| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| |
<
< | The First Amendment in the age of social media
Revision in progress | >
> | The First Amendment and the state action requirement in the age of social media | | | -- 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 First Amendment guarantees Americans freedom of expression by prohibiting government/state action restricting individuals' rights to speak freely. This foundational constitutional principle ensures that speech, including "vehement, caustic, and unpleasantly sharp attacks" critical to political choice, is heard. Accordingly, the US' conception of free speech espoused by the First Amendment is arguably globally the most expansive, with the highest tolerance for hate speech. | | | | |
<
< | The problem | >
> | Notwithstanding alternative channels of communication and irrespective of its objective merits, significant political communication today has migrated to, and regularly occurs on, private nongovernmental social media platforms like Facebook and Twitter. This may become increasingly problematic as such platforms, if deemed unconstrained by the First Amendment, are given free rein to self-regulate their users' speech. | | | | |
<
< | 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. | >
> | Yet the application, and the extent of protection, offered by the First Amendment in this private context is problematized and circumscribed by the First Amendment's state action requirement. Whilst the case of Marsh indicated that the state action doctrine may be somewhat elastic where private bodies assume governmental functions, an examination of the cases that followed ultimately suggests that the state action requirement may "foreclose [the] use of the First Amendment to constrain the policies and practices" of private nongovernmental online platforms where there is either no or a tenuous assumption of such functions. Nevertheless, the recent case involving President Trump's blocking activities on Twitter and the court's finding that this was unconstitutional suggests that the "distinctly twenty-first century" privately owned mediums of social media are not necessarily immune to the application of the First Amendment. As the court found, the First Amendment may apply in more limited ways to "portions" of the medium where it is used and controlled in a way that is clearly "governmental in nature". Though the court stressed that such a finding does not directly implicate the private platform's conduct but rather attaches to the particular user or governmental use, it may nevertheless offer individual users some First Amendment protection when political communication occurs via social media. | | | | |
<
< | 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. | >
> | The issue | | | | |
<
< | 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. | >
> | The text of the First Amendment makes it clear that the doctrine prohibits only governmental interference with free expression and does not apply to private action restricting speech by nongovernmental actors-a "certain amount of state action [is required] to trigger constitutional protection". Thus, in applying the First Amendment, courts have traditionally distinguished "between public institutions which are bound by the First Amendment and private ones which may retain stronger rights to set their own rules". | | | | |
<
< | Social media vis-à-vis the First Amendment | >
> | Contemporaneous with the coalescence of public and private today, "the legal lines" seem "more tangled" such that a purely formalist approach seems harder to maintain, "especially in light of our nation's history of protecting free discourse in the spaces where such speech actually occurs". Nevertheless, for the First Amendment to apply, the threshold question remains: can private internet platforms qualify as state actors? | | | | |
<
< | 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'. | >
> | State action jurisprudence | | | | |
<
< |
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 state action doctrine has been described as among the "most complex and discordant…in American jurisprudence" because it has undergone expansion and contraction, particularly vis-à-vis its application to privately owned property. This issue was first encountered in Marsh, where due to the "very special situation of a company-owned town" where the company's property had taken on "all the attributes of a town", the court viewed the "company owner [as having] stood in the shoes of the state". It was seen as the functional equivalent of a state municipality such that the private property could be treated as though it were public. Thus, the state action requirement was met, and the First Amendment applied to restrict the company-owned town from restricting expressive activity on the property. This functional rather than formal interpretation was extended in Logan Valley. Notwithstanding dissension, the court applied state action to a privately-owned shopping mall to prohibit it from restricting the public's First Amendment rights where this expression related to the center's store. The court reasoned both by analogy to Marsh, viewing the private shopping center as the functional equivalent of a "business block" open to the public and on the basis that the First Amendment activities related to a store situated in an enclave such that other opportunities to convey the message to the intended audience were unavailable. However, in the subsequent case of Lloyd, the court refused to find state action where a privately-owned mall refused the distribution of hand-billing on their private property where the hand-billing had no direct relation to the shopping center and could therefore have distributed these and exercised their speech rights anywhere. Additionally, the court found that the center did not invite the public to use it for "any and all purposes". Distinguishing the case from both Marsh and Logan, the court strictly confined both of those cases to their particular facts. It clarified that Marsh was an anomaly requiring a complete "assumption or exercise of municipal functions or power" to become the functional equivalent of a governmental entity. The court also departed from previous cases insofar as it reiterated that property does not "lose its private character merely because the public is generally invited to use it", especially where the private property is in a business that necessitates public access. Thus, whilst privately owned property may be treated as though it were publicly held for the purposes of the First Amendment, the circumstances where this occurs are narrow. | | | | |
<
< | 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. | >
> | Social media and state action | | | | |
<
< |
But that was always true of newspapers and electronic broadcasters, too. Overcoming the requirement of state action doesn't happen so easily.
| >
> | While commentators have likened social media platforms to modern town squares given their increasing use by political candidates to communicate with their constituencies, the third-party platform itself-as distinct from its user's use-does not assume, exercise or substitute any governmental or municipal power or stand in the shoes of the state in a way comparable to Marsh and thus does not trigger the First Amendment. Additionally, as Lloyd observed, the availability of alternate communication, which is widely available online, may weigh against the application of the First Amendment on a private platform. However, as President Trump's case illuminated, more confined protection may nevertheless exist for communications that are clearly governmental. | | | | |
<
< | 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.
| | | |
|