Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Hailie Goldsmith
Hailie Goldsmith is a sophomore in the College of Arts and Sciences, majoring in Philosophy, Politics and Economics and minoring in Hispanic Studies.
In the age of omnipresent social media platforms, a majority of speech and dialogue now takes place online. For this reason, conflicts discerning which speech falls outside the protection of the First Amendment now frequently occur on an online stage rather than in-person. These conflicts are amplified by the wide-reaching arena compared to the minimal reaches of interpersonal interactions. Because social media can expose millions of people to information in a short period of time, speech can result in real actions and potentially violent consequences.
Unsurprisingly, social media has recently fallen under immense scrutiny in the wake of the Capitol riots that were incited by Donald Trump’s months-long onslaught of election fraud claims. At the core of this incited insurrection was his social media campaign. Even in 2017, Donald Trump’s Twitter account had amassed about 40 million followers . Though social media platforms censor posts very infrequently and typically encourage free and unrestricted discussion, social media sites did choose to remove Donald Trump’s accounts from their platforms as an emergency response to the Capitol insurrection. Major sites like Twitter and Facebook banned Donald Trump’s accounts from their platforms in an effort to silence any violence-provoking speech.
Social media sites hold great power over regulating speech in online forums. For instance, Reddit removed the Donald Trump subreddit, and TikTok removed any videos labeled with #stormthecapitol . The vast deplatforming effort that aimed to de-escalate claims of false election results and prevent another violent attack on U.S. government landmarks did in fact starkly reduce the spreading of lies about election fraud . However, these decisions by prominent social media companies raise serious questions pertaining to speech regulation.
Some strong First Amendment proponents believe that social media platforms should allow Donald Trump to continue propagating false claims about a stolen election because of a firm commitment to the “marketplace of ideas,” which they felt should be untouched by any form of interference or policing . According to the American Bar Association, there exist two major categories of arguments that justify the protection of the First Amendment rights: the marketplace of ideas and individual self-fulfillment. The marketplace of ideas refers to free and unhindered debate of ideas and opinions, and individual self-fulfillment refers to an individual’s right to self-expression for the intrinsic purpose of growth and identity development. In either of these two scenarios, government intervention violates the First Amendment . Bipartisan advocates for the protection of free speech, such as the Knight First Amendment Institute at Columbia University, corroborate this and are strongly in favor of allowing all forms of political speech in order to encourage a free exchange of a wide array of perspectives .
Contrary to Donald Trump’s outcries, social media platforms, including Twitter and Facebook, did not violate the First Amendment in banning his accounts and regulating content. The First Amendment protects U.S. citizens’ right to speech, free from any government intervention, but the First Amendment says nothing about private companies and their decision to implement their own speech and conduct guidelines. In this case, the decisions of tech companies to intervene in online dialogue does not legally interfere with the First Amendment . Moreover, Section 230 of the Communications Decency Act of 1996 legally permits social media companies to regulate and monitor users’ posts and content according to their discretion .
Though Twitter, Facebook, and other tech giants do not legally violate the First Amendment, some argue that these private companies should still be subjected to greater oversight and regulation because these major tech platforms hold significant power and influence over the exchange of so much information in the United States . In fact, an estimated 3.5 billion people actively used social media in 2019 . Though private social media companies do not legally have to adhere to the First Amendment rights of individual users, these companies still effectively control and moderate online discourse, and the American Bar Association proposes the expansion of the First Amendment to also limit interference by sites like Facebook and Twitter . The ABA presents an important thesis: “When a private actor has control over online communications and online forums, these private actors are analogous to a governmental actor” .
Although the decision to ban Donald Trump from social media platforms removed a source of information that spread lies and incited violence, this decision demonstrates the ability of big tech to limit speech and curate the particular information available to Internet users . In this case, executives in Silicon Valley, not government institutions, maintain the power to determine the outcomes of difficult conflicts involving the First Amendment and free speech disagreements . Some feel as though government regulation is better suited for protecting the First Amendment while still being careful to eliminate false information and violent language. For years, there has been disagreement among constitutional law experts with regards to how strictly or loosely the First Amendment rights should be interpreted and applied—how much freedom of speech does this amendment actually grant individuals? However, free speech should be monitored to some degree in any case for the assurance that it does not ever reach an unrestricted and unruly point when it can undermine democracy, as was seen with the Capitol insurrection.
 Caplan, Lincoln. “Should Facebook and Twitter Be Regulated Under the First Amendment?” Wired. October 11, 2017. https://www.wired.com/story/should-facebook-and-twitter-be-regulated-under-the-first-amendment/
 Bazelon, Emily. “Why is Big Tech Policing Speech? Because the Government Isn’t.” The New York Times. January 26, 2021. https://www.nytimes.com/2021/01/26/magazine/free-speech-tech.html
 Hudson, David. “In the Age of Social Media, Expand the Reach of the First Amendment.” American Bar Association. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/in-the-age-of-socia-media-first-amendment/
 “Facebook Oversight Board Should Delay Ruling on Suspension of Trump, Knight Institute Says.” Knight First Amendment Institute at Columbia University. February 11, 2021. https://knightcolumbia.org/content/facebook-oversight-board-should-delay-ruling-on-suspension-of-trump-knight-institute-says
 Sonnemaker, Tyler. “Twitter and Facebook both banned Trump from their platforms. Here’s why that doesn’t violate the First Amendment—or any other laws.” Business Insider. January 9, 2021. https://www.businessinsider.com/why-trump-bans-from-twitter-facebook-dont-violate-first-amendment-2021-1
 Phillips, Amber. “No, Twitter is not violating Trump’s freedom of speech.” The Washington Post. May 29, 2020. https://www.washingtonpost.com/politics/2020/05/29/no-twitter-did-not-violate-trumps-freedom-speech/?arc404=true
 Digital 2019. Hootsuite. https://www.hootsuite.com/pages/digital-in-2019
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