First Amendment and Social Media: Analytical Essay

#1 Body Intro Paragraph (for part 1 of my research paper)

In order to better understand the possible impact of internet censorship on our society, it is necessary to begin by looking at the 1st Amendment (see figure 1). Among other things, the 1st Amendment protects our freedom of speech. It is one of the building blocks of the democratic society we’ve all grown so used to. It allows citizens of the United States to use any kind of speech they see fit, as long as it is protected speech (unprotected speech: hate speech, inciting violence, supporting terrorism, public employer speech, defamation, intellectual property, and true threats). The 1st Amendment protects not only speech, but also religion, the press, and the right of people to peacefully assemble. The 1st Amendment truly lays the foundation for our uniquely American way of life.

Figure 1. Bill of Rights: 1st Amendment. Adapted from “1st Amendment Definition Sticker,” 2019, U.S. Custom Stickers. Retrieved October 13, 2019, from https://www.uscustomstickers.com/product/1st-amendment-definition-sticker

Body (after Intro #1)

It is important to note that the 1st Amendment was a loosely written text (many of the other amendments were created in the same fashion) and that this was done for good reason. The framers of the Bill of Rights did this so that these extremely important laws would have room to grow and change with the times. This has led to a broadening of the protections that the 1st Amendment grants U.S. citizens and ultimately safeguards us from government censorship. Interpretation of this fundamental freedom has varied since its inception, but the concept of freedom of speech has stayed very much the same. The 1st Amendment guarantees U.S. citizens the right to freely express ideas and information without government restraint. The mechanism created from free speech provides Americans with the truth and allows us to make informed decisions based upon that truth.

Social media sites are not bound by the caveat of the 1st Amendment which protects against censorship because they are private companies. This means internet companies such as Google, YouTube, Facebook, Amazon, and Twitter can control the flow of information as they see fit, withholding one piece of information, while mass-presenting another. These companies also have the ability to choose who they allow to join and remain on their sites. As Ken White, host of “Make No Law: The First Amendment Podcast” pointedly explains, “these companies are not breaking the law when they ban, block, or demonetize an individual…” (White, 2019) An example of this kind of treatment happened in early 2019 when “Mohammed’s Koran: Why Muslims Kill for Islam,” co-authored by British activist Tommy Robinson and Peter McLoughlin, was banned by Amazon citing inappropriate content. The book used teachings from the Koran and recent events coupled with facts to help expose the practice of “grooming” young Muslims to commit terrible atrocities. Robinson replied to the banning of his book stating, “This is the twenty-first century equivalent of the Nazis taking out the books from university libraries and burning them.” (Brown, 2019) Similar to Amazon, Facebook has come under scrutiny for its ramping up of bannings and extreme moderation. In February of 2019, they banned political figures, Alex Jones and Louis Farrakhan, labeling their accounts as “dangerous.” Facebook believes that the words of these two men incite hate speech. In Eric Johnson’s Vox article, “Should the First Amendment apply to Facebook? It’s complicated,” executive director of the Knight First Amendment Institute, Jameel Jaffer explains, “That’s when I think free speech advocates start to get nervous about Facebook excluding people from the platform, especially when there’s an argument that they’re excluding people on the basis of viewpoint.” (Johnson, 2018)

To begin making an informed decision on how censorship might be regulated within the confines of the internet, it is essential to look at U.S. law regarding “publishers” and “distributors” of media. Under standard common-law principles, a person who publishes a defamatory statement by another bears the same liability for the statement as if he or she had initially created it. (Digital Media Law Project, 2019) This means that newspapers and publishers of books and magazines are liable for the information presented on their pages. Since publishers can be held liable for the information on their pages, they are allowed editorial control which gives them the power to censor defamatory material. Distributors (newsstands, bookstores, libraries) on the other hand are not liable for the content contained on the pages of the material they sell. This is understandable as it would be very difficult for distributors to properly check each word of the extensive amount of print they sell, day after day.

What does this have to do with censorship and the internet? In 1991, the case of Cubby v. CompuServe, Inc. came before U.S. courts. CompuServe was an early provider of internet chat rooms and was being sued for allegedly defamatory statements that were made between online users of their service. They “argued that it [CompuServe] should be treated like a distributor because it did not review the contents of the bulletin board before it appeared on CompuServe’s site. The court found in CompuServe’s favor citing that they were not liable for the information in their chat rooms. In 1995 another case, Stratton Oakmont v. Prodigy was filed and involved another internet website, Prodigy, similarly being sued for defamation due to derogatory online statements. Unfortunately for Prodigy, they had in several cases been censoring parts of the content that appeared on their site’s bulletin boards. Since Prodigy had censored content in a number of cases, the court found that Prodigy had acted as a publisher and was, in fact, liable for all of the communication on its site. (Digital Media Law Project, 2019)

Acknowledging that it would be too difficult for internet companies to edit all of the user comments constantly flowing onto their sites, the U.S. government passed the Communications Decency Act. The law reads that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” (Digital Media Law Project, 2019) This means that these companies are fully protected from lawsuits that might pop up due to hate speech, defamation, or incendiary remarks that appear on their site as long as it is from a third-party. This seems like a fair and decent law due to the inability of pretty much anyone to control what appears on the internet. The question which arises is whether or not these companies who are protected by the Communications Decency Act should have the right to censor. The ability to censor was given to publishers to protect against libel. So now, not only do these social media giants have immunity from tort liability, they have the publisher-granted ability to censor.

There is another important part of the censorship equation that must be looked at having to do with the definition of a public forum. A public forum is a community meeting place where ideas and views on a particular issue can be exchanged. Public forums are protected by the U.S. government and subject to its rules and regulations. More importantly in Rosenberger v University of Virginia, it was decided by the Supreme Court that a public forum need not be a physical space. (Exploring Constitutional Conflicts, n.d.) This has made people wonder if social media websites, in fact, are public forums and should be regulated as such. They are most certainly the meeting place of the masses and many an idea has been exchanged there. Should social media websites have to abide by the rules of free speech and discriminatory practices laid out by the government? The Supreme Court has said no deciding to protect internet companies' rights. “The Supreme Court has repeatedly ruled that a private entity only engages in State Action and therefore is only subject to the First Amendment when it performs a traditional exclusive public function.” (White, 2019)

The internet has become a centerpiece in our busy lives and certainly has the ability to influence the masses. U.S. Supreme Court Justice Anthony Kennedy pretty much hits the nail on the head when in 2017 he states, “we cannot appreciate yet its [the internet’s] full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.” (Hudson Jr., 2019) With the great power that these internet giants wield, should the 1st Amendment control their ability to censor information? In the following, we will examine these titans of social media and whether the right of theirs to censor is lawful.

#2 Body Intro Paragraph (for part 2 of my paper)

As we move further into the 21st-century, advertising is increasingly shifting from more traditional methods such as radio and television to the world of digital advertisements (see Figure 2). In an excerpt from Greg Sterling’s 2019 article, “Almost 70% of digital ad spending going to Google, Facebook, Amazon...” he explains that “Google, Facebook, and Amazon are the top three digital ad platforms in the U.S. Together they capture just under 70% of all digital ad dollars spent according to eMarketer.” (Sterling, 2019) The article points out that the kind of power some of these social media giants wield in terms of digital ad dollars needs to, at the very least, be monitored very carefully. Sterling raises the question of whether or not there should be any government regulation laid down to facilitate fair and just business practices by the very few internet companies that control digital advertising.

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According to a survey conducted by eMarketer.com, “In 2019, worldwide digital ad spending will rise by 17.6% to $333.25 billion (see Figure 2). That means that, for the first time, digital will account for roughly half of the global ad market.” (Enberg, 2019) As Sterling’s article above points out, controlling half of the global ad market translates into some very real power for these companies. These companies have the ability to control a wide array of matters. They have the final say in terms of what advertising content makes it onto their websites. Imagine if the big 3 (Google, Facebook, and Amazon) decided to freeze out a particular company. Now, where will this company advertise? These companies have the power to control which ads are played during which times. They even have the capacity to control which person sees which ad. “According to Pew Research, these companies can make a little change to an algorithm and it will affect what everyone sees.” (Sydell, 2017) Ultimately, these companies have substantial power over the speech of anyone who uses their sites. With only a handful of major players controlling the vast majority of digital advertising, the question must be raised of whether there should be government regulation to facilitate fair and just business practices by these companies. For example, would it be just if the big 3 cut off a particular company who held different views from them regarding a controversial subject? When, where, or if at all should the government step in?

Figure 2. Digital ad spending worldwide, 2018-2023. Adapted from “Digital Ad Spending 2019,” by J. Enberg, 2019, Report Collection. Retrieved October 12, 2019, from https://www.emarketer.com/content/global-digital-ad-spending-2019. Copyright 2019 by eMarketer inc.

Body (after intro #2)

In an attempt to better define the kind of power these social media enterprises wield, this paper will look at specific events that happened to Neo-Nazi Richard Spencer. In a 2017 interview titled, “Unlikely Allies Join Fight To Protect Free Speech On The Internet,” Laura Sydell talks to Richard Spenser, a prolific white supremacist, and Robert McChesney, a communications professor at the University of Illinois. In early 2017, Richard Spencer found that his online Neo-Nazi publication, “The Daily Stormer,” had been blocked by a number of extremely formidable internet corporations. The “Unlikely Allies” interview looks at the effective crippling of “The Daily Stormer” and points out what can happen when a hostile alliance of websites goes after a business, publication, or website.

REVIEWED TO HERE: The attack on the Daily Stormer began with GoDaddy, an internet domain registrar taking away The Stormer’s domain name. This means that The Daily Stormer will have to register a new domain name somewhere else. In the meantime, there will be no way to visit their website (they don’t have one) and no easy way to direct fans to any new websites they might create. Google went about shutting down the ability of users to link to any of The Daily Stormer’s material. Facebook banned The Daily Stormer and took down links to any article it published. Finally, PayPal ended its business relationship with Spencer and The Stormer. These attacks have resulted in unrepairable damage to The Daily Stormer. Yes, all of these companies' actions to shut down The Daily Stormer were perfectly legal. Yes, The Daily Stormer deserved to be silenced for its hateful propaganda and a number of other reasons. It’s just a little scary that these internet and social media companies can so thoroughly shut someone up. What if they begin using this power to control the narrative that everyone hears.

China Paragraph?

In no way is the previous writing meant to defend Neo-Nazis or any of their hateful rhetoric. It is not meant to advocate hate speech or is it suggesting that any changes be made to the 1st Amendment. Looking at what happened to The Daily Stormer is meant to demonstrate what these internet giants can do when provoked. When defending his cause, Spencer makes good sense stating, “ Getting kicked off Facebook or YouTube or PayPal, whatever, this is effectively losing the ability to speak. It is actually a more powerful form of censorship than were a government to censor it.” (Sydell, 2019) Spencer goes on to say that “these are the free speech platforms in the 21st century.” (Sydell, 2017) When there is a monopolistic hold over the online marketplace which de facto controls the free speech platforms, is it necessary for the government to step in and protect our rights?

In what some view as an attempt to further grasp control of the American narrative, Facebook has announced that it will now be exempting political figures from “posted advertising guidelines.” In an excerpt from “The Interface,” “The Verge’s” daily column about the intersection of social media and democracy, senior editor Casey Newton explains that this change by Facebook will effectively allow politicians to lie on the internet. (Newton, 2019) Is this a principled stand by Facebook to

The “posted advertising guidelines” require that claims in advertisements must be truthful, cannot be deceptive or unfair, and must be evidence-based. (ftc.gov, 2019) These FTC guidelines prohibit “misinformation,” defined as “ads that include claims debunked by third-party fact-checkers or, in certain circumstances, claims debunked by organizations with particular expertise.” (Newton, 2019) By exempting politicians from this FTC regulation, Facebook has not only opened the door to lies and deceit but to an ill-informed public. Deceptive candidates will now be able to improve their chances of winning an election by stretching the truth or straight out lying. It is important to note that this is well within the scope of Facebook’s power. They can allow any content they please onto their site. But why this?

“If you see an ad on Facebook, should the contents of that ad be true? Historically, the answer has been yes.” (Newton, 2019) People want to hear the truth and don’t like having the wool pulled over their ears. Democrats have pointed out that President Trump has already made use of Facebook’s political ad exemption stating that he was going to close the southern U.S. border to Mexico. (Newton, 2019) It's sad when U.S. citizens can only wonder if what is being said by these powerful figures is true. People also need to recognize that Facebook still decides what content makes it onto its site. So Facebook is not only allowing lies to flow forth freely from politicians, it gets to control which lies make it onto its site. That is power. That is controlling the U.S. narrative. Disapproving of Facebook’s new power, Newton, the author of the article stated that, “Facebook is big, and its CEO is unaccountable to any electorate, and so I would rather the company not referee political speech.” (Newton, 2019)

One of the more prominent issues that the “Unlikely Allies” article looked at was the case of Senator Elizabeth Warren, who announced her candidacy for President on February 19, 2019. (ballotpedia.org, 2019).

Facebook’s vast size and influence SENATOR WARREN EXCERPT FOR A SMALL PARAGRAPH: Looking at the election of Senator Warren (USE POLITICAL LYING NOTES – the last page)

The internet is the preeminent free speech forum of the day, second to none. “Research shows that if Facebook or Google changes an algorithm just slightly and puts a different type of story [out to the masses], it affects the way people think about the world.” (Sydell, 2019) That kind of power is unnerving to some. Both Richard Spencer and Robert McChesney believe it’s time for the U.S. government to step in and redefine free speech on the internet. As private companies though, these internet giants have no obligation to make any changes to their business practices.