Is Social Media a Threat to the First Amendment?

It’s come to this for free speech. Florida Gov. Ron DeSantis recently sent out a message that basically said, the sky is falling; send money.  “The Radical Left – including President Biden – want to close our businesses, open our borders, let Silicon Valley ban opinions they disagree with, and ultimately control our lives,” he said.  (“But we can stop them if you rush in a contribution.”) House minority leader Kevin McCarthy sent a similar message.

Twitter and Facebook’s eviction of ex-President Donald Trump – and Trump’s incitement of the Capitol mob – have stirred a lot of argument about free speech, some of it from unlikely directions. Does social media require a re-set? Has cancel culture toppled our old guidelines? Is the First Amendment now a polarized military battlefield? Has free speech become an incitement to insurrection?

“Silicon Valley’s sidelining of the most powerful person in the world has struck many — and not just his allies — as an alarming development,” Spencer Bokat-Lindell wrote in The New York Times. “World leaders have vocally condemned the power Silicon Valley has amassed to police political discourse, and were particularly indignant over the banning of the U.S. President,” the journalist Glenn Greenwald notes. German Chancellor Angela Merkel, various French ministers, and Mexican President Andrés Manuel López Obrador, denounced the banning of Trump and other acts of censorship by tech monopolies, charging that these companies were anointing themselves “a world media power.” 

Of course, Twitter and Facebook as private companies aren’t subject to the First Amendment.  The Bill of Rights protects people from their government. On-line platforms aren’t (yet) our government.  End of story? Hardly.

“Trump has provoked a debate among legal scholars over whether the once-sacrosanct constitutional protection of free speech has itself become a threat to democracy by enabling the widespread and instantaneous transmission of lies in the service of political gain,” Thomas B. Edsall wrote in The New York Times. Edsall continued: “Richard Hasen, at the University of California-Irvine Law School, described some of the more radical reform thinking in an email: “‘There is a cadre of scholars, especially younger ones, who believe that the First Amendment balance needs to be struck differently in the digital age. The greatest threat is no longer censorship, but deliberate disinformation aimed at destabilizing democratic institutions and civic competence.’”

The First Amendment itself isn’t going anywhere. It will still famously say that “Congress shall make no law . . . abridging the freedom of speech or of the press.” And its full meaning will still stem from decisions of the United States Supreme Court, importantly from decisions made by the Warren Court of the 1960s.  The current court could alter the amendment’s scope.  It probably won’t – except, perhaps, if it is forced to take a fresh look at the very narrow exception to First Amendment protection that the Warren Court defined for incitement.

With that exception for incitement (crying “Fire” in a crowded theater), the amendment protects just about all speech, broadly interpreted, against government interference based on content.  It also protects the publishers of speech against libel judgments in most suits brought by aggrieved public figures, citing the need for vigorous public debate. Non-public figures can more easily bring and win libel suits.

So far, the amendment doesn’t really address the new “marketplace of ideas” created by the internet. The old civil libertarian faith that good speech drives out bad may not work if people siloed on the internet are never exposed to “good” speech. The questions raised by Trump and his followers’ lies and vitriolic statements posted on social media can be defined as speech issues, but basically, they involve whether, and if so how, government should change its regulation and protection of for-profit tech companies.

Those companies can clearly regulate what gets posted on their sites and platforms.  After Twitter banned Trump, many Trump followers allegedly switched to Parler, which Amazon Web Services (AWS) then stopped hosting.  Parler has sued.  Earlier this month, U.S. District Judge Barbara Rothstein didn’t dismiss Parler’s substantive claims; they can go to trial.  But in rejecting the company’s request for an injunction, she spurned “any suggestion that the public interest favors requiring AWS to host the incendiary speech that the record shows some of Parler’s users have engaged in.” 

Well, isn’t that “incendiary speech” kind of the point? 

As President, Trump wanted Congress to repeal section 230 of the Communications Decency Act of 1996, which shields internet platforms and internet service providers from liability for anything published by third parties on their sites. Actually, section 230 shields them from liability for publishing potential libel — and for limiting or restricting access. Trump indignantly resented having his Tweets flagged for misleading readers and for glorifying violence. Trump wanted a repeal of section 230 attached to last month’s National Defense Appropriation Act, which funds the military, and vetoed the legislation because it did not contain his desired repeal (and because it did not reverse the re-naming of bases that had once been named for Confederate leaders).  Congress over-rode his veto.  

It’s easy to dismiss Trump’s fit of pique – and to argue, as University of Washington political scientists James D. Long and Victor Menaldo do in The Seattle Times, that section 230 is a valuable protector of free speech, crucial to the internet as we know it. But Trump is not the only person who thinks we might be better off without section 230.  “[T]he real problem with section 230, which I used to strongly support, is the kind of internet it has enabled,” wrote Steve Randy Waldman recently in The Atlantic.  “Congress should revise section 230,” Waldman wrote,  though “not for the reasons the president and his supporters have identified.“

Waldman argues that the law lets Facebook and Google reap the financial benefits of hugeness while outsourcing the costs.  Not many years ago, the internet wasn’t dominated by a few behemoths.  And it doesn’t have to be. “If made liable for posts flagged as defamatory or unlawful, mass-market platforms including Facebook and Twitter would likely switch to a policy of taking down those posts automatically,” he writes.

That wouldn’t necessarily be a bad thing. Waldman continues: “Incentives would shift: Mass platforms would have to find a balance among maximizing viewership, encouraging responsible posting, and discouraging users who frivolously flag other people’s posts. They would no longer get a free pass when publishing ads that are false or defamatory.” And that wouldn’t stifle free expression: “Vigorous argument and provocative content would migrate to sites where people take responsibility for their own speech, or to forums whose operators devote attention and judgment to the conversations they host. The result would be a higher-quality, less consolidated, and ultimately freer public square.”

Some of us may wax nostalgic for a pre-internet public square in which the Fairness Doctrine required a broadcaster that gave space to one partisan point of view to also give space to the opposing point of view.  The Reagan Administration’s FCC abandoned the doctrine in 1987. 

In a Huffpost article published shortly after Trump’s inauguration – and headlined “Did The Demise Of The Fairness Doctrine Lead To Trump’s Election?” – Fred Lundgren wrote of “a growing consensus that the elimination of The Fairness Doctrine is the single largest contributor to the manifestation of nationwide verbal hostility.” There are certainly many who argue that dumping that doctrine made possible the rise of conservative talk radio.  

In theory, the Fairness Doctrine could be resurrected.  But how?  The doctrine worked fine when most people got information from a handful of broadcast TV networks. Now, it’s easy to sign up for a cable plan that offers you 300 channels.  The “news” sources you can reach through the internet are for all practical purposes unlimited, as are the points of view expressed.  How could the FCC or any other agency police them all?  How could a news source balance a plethora of competing views, some more off-the-wall than others?  And even if it were feasible, would we want government – perhaps headed by a resurgent Donald Trump – acting as referee?

The First Amendment already keeps the government from deciding what is and isn’t true.  It has also shielded publishers from libel suits filed by aggrieved public figures whether the mean things said about them – if said in reasonably good faith – are true or not. We all have a constitutional right to be wrong, at least if we’re writing about public figures.  In Sullivan, the Warren court decided that an Alabama official couldn’t collect a libel judgment against The New York Times for a campaign ad published in the Times that contained false information.  It said that a state court couldn’t let a public official collect a libel judgment for a false statement made about his official conduct unless he could prove that the statement was knowingly false or made with “reckless disregard” for the truth. The Sullivan court stated unequivocally that “[a]uthoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth.”

Truth? We may all have a constitutional right to brazenly lie: In its 2012, Alvarez decision, the Court ruled in favor of a California water board official who had publicly – and falsely – claimed to be a Medal of Honor winner, in violation of the federal Stolen Valor Act.  The plurality opinion, written by Justice Kennedy, joined by Ruth Bader Ginsberg and Chief Justice Roberts, held that the Constitution “demands that content-based restrictions on speech be presumed invalid.”

“Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage,” the plurality said, “it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.”

So, yes, the government can’t punish you for lying.  But it can punish you for incitement. However, that’s a hard charge on which to convict.  In the the 1969 Brandenberg decision, which reversed the conviction, under Ohio law, of a Ku Klux Klan leader who had said  that “if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance (sic) taken” (he also boasted that “we are marching on Congress July the Fourth, four hundred thousand strong”) — the Supreme Court distinguished “mere advocacy” from “incitement to imminent lawless action.”  

“Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation,” the ruling said, “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Did Trump go beyond “mere advocacy?” That might be a difficult case to prove in court.  However, it’s entirely possible that “incitement” should be re-defined for the Internet age.  Brandenburg concerned a little bunch of Klansmen standing around in bedsheets in an Ohio field. That was then. But now that you may always have, in effect, an armed mob already assembled in cyberspace, it may be harder to distinguish “mere advocacy” from incitement. 

To be sure, some future change in the way courts view the incitement exception to the First Amendment will have no bearing on Trump’s upcoming Senate trial. There, “incitement” will be whatever two-thirds of the Senators present say it is. And two-thirds aren’t likely to say that incitement happened in Washington D.C. on January 6.  

Whatever happens, most of us may prefer to move on from questions about the First Amendment in the 21st century and Big Tech’s responsibility for internet speech.  But we shouldn’t. Those questions aren’t going anywhere.