Social Media: The New Public Square?

The First Amendment to the U.S. Constitution

“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 of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Rohingya refugees support each other while crossing the Myanmar-Bangladesh border. According to legal action taken in the US and UK, Facebook’s amplification of and failure to remove hate speech targeting Rohingya Muslims in Myanmar has facilitated the genocide of the Rohingya people, which began in 2016.

Photo Credit: Mohammad Ponir Hossain/Reuters

Introduction – The Best and the Worst of Humanity On Social Media 2022

The Best:

- A 7-year-old boy became a viral sensation thanks to his love of corn. The creator who discovered him shares the unexpected story behind the video. Insider, September 17, 2022

The Worst:

- Social Media Companies Vowed To Stop Videos of Terror Attacks. Buffalo Showed They Have More Work To Do Time, May 17, 2022

Key Incidents from the Tracker

- Conspiracy theorist Alex Jones removed from social media platforms after calls for misinformation crackdown — August 2018
- Trump sues Facebook, Twitter, Google for ‘censorship’, launches his own social media platform — July 2021
- Rohingya refugees sue Facebook for contributing to genocide — December 2021
- Supreme Court blocks Texas law prohibiting social media giants from banning users based on political viewpoint — May 2022
- Government disinformation board succumbs to disinformation — June 2022
- Social media platforms ban misogynistic influencer, purge related posts — August 2022
- Report finds Facebook censored Free Speech rights of Palestinian users during violent conflict with Israel in 2021 — September 2022
- Investigation shows campus police across the country used surveillance program to monitor student protests — September 2022
- Consequences follow Ye’s antisemitic remarks and misinformed comments about George Floyd’s death — October 2022
- Parts of New York’s gun law mandating social media background checks reinstated, provision banning guns in places of worship temporarily blocked — October 2022
- Elon Musk-Twitter Deal Finalized after months of legal drama — October 2022

Facebook – How Did We Get Here?

How did Facebook, which started as a dating app, become the primary purveyor of misinformation, disinformation, violence, and hatred?

- Timeline: Facebook at 15: How a college experiment changed the world, CNN, February 1, 2019

Section 230

Sec. 230 of the Communications Decency Act of 1996 protects social media (and other companies) from legal liability for the content posted on their websites and their moderation decisions. In recent years, lawmakers have debated whether Sec. 230 needs to be amended to protect against misinformation and disinformation.

- The secret rules of the Internet The Verge, April 13, 2016
- The 1996 Law That Ruined the Internet The Atlantic, January 3, 2021
- Legal Shield for Social Media Is Targeted by Lawmakers, The New York Times, May 28, 2020
- Section 230 is 25 years old, and it’s never been more important The Verge, February 8, 2021
- Op-Ed: Section 230 created the internet as we know it. Don’t mess with it L.A. Times, March 19, 2019
- Supreme Court rules for Google, Twitter on terror-related content The Washington Post, May 18, 2023

Jose Hernandez and Beatriz Gonzalez, the stepfather and mother of Nohemi Gonzalez, speak to the media outside the US Supreme Court on February 21, 2023 following oral arguments in *Gonzalez v. Google* in Washington, DC. Nohemi Gonzalez died in a terrorist attack in Paris in 2015.

Photo Credit: Jim Watson/AFP/Getty Images

The New Public Square?

Zooming Out: Social Media and the World

- Europe’s crackdown on Big Tech omitted TikTok — but now that’s set to change, CNBC, January 30, 2023
- A BBC documentary highlights growing social media censorship in India, Columbia Journalism Review, January 26, 2023
- Come to the ‘war cry party’: How social media helped drive mayhem in Brazil, The Washington Post, January 9, 2023
- China suspends social media accounts of Covid policy critics, BBC, January 7, 2023
- Iran’s government accesses the social media accounts of those it detains. Tech companies appear ill-equipped to stop it, CNN Business, December 19, 2022

Meta Platforms CEO Mark Zuckerberg ready to testify before a joint hearing of the US Senate Commerce, Science and Transportation Committee and Senate Judiciary Committee at the US Capitol, April 10, 2018 in Washington, DC.

Photo Credit: Jim Watson/AFP/Getty Images

Regulation Station: Should We? If So, How?

- Social Media and the First Amendment
- Push to rein in social media sweeps the states Politico, July 7, 2022
- Montana becomes 1st state to approve a full ban of TikTok NPR, April 14, 2023
- Federal Judge Limits Biden Officials’ Contacts With Social Media Sites The New York Times, July 4, 2023
- Lawmakers See 2022 as the Year to Rein in Social Media. Others Worry Politics Will Get in the Way, Morning Consult, December 15, 2021

- Can we regulate social media without breaking the First Amendment? The Verge, December 16, 2021
- On October 28, 2020, executives from Facebook, Twitter, and Google testified before a Senate subcommittee on their efforts to rein in misinformation and allegations that their businesses had an anti-conservative bias. Watch different sections of the hearing to hear questions from members of the committee and the responses from tech executives.

Pro / Con

Below are select commentaries featuring additional opinions on the issue. When reading, identify the author’s key arguments and how their perspective addresses social media issues more broadly—while at first glance the pieces below may seem strictly for or against social media (free speech, regulation, censorship), the points made by each author are more nuanced.

- The First Amendment has a Facebook problem Vox, May 5, 2021
- How to Regulate (and Not Regulate) Social Media Knight Columbia Institute, March 25, 2020
- We Can Regulate Social Media Without Censorship. Here’s How Time, July 22, 2022
- How to Fix Twitter and Facebook The Atlantic, June 9, 2022
- On Social Media, American-Style Free Speech Is Dead Wired, April 27, 2021
- Government regulation of social media would kill the internet — and free speech The Hill, August 12, 2019
- Social Media Companies Should Self-Regulate. Now. Harvard Business Review, January 15, 2021
- Why the Government Should Not Regulate Content Moderation of Social Media Cato Institute, April 9, 2019
- Don’t regulate social media companies — even if they let Holocaust deniers speak USA Today, July 19, 2018
- The Trauma Floor, the secret lives of Facebook moderators in America, The Verge, February, 25, 2019

Discussion Questions

Are social media really the new public square? Why or why not?
Must private companies refrain from viewpoint discrimination if they serve a public function? How should we think about laws that prohibit companies from censoring certain viewpoints?
Does banning public officials from social media infringe on their Free Speech rights? How should companies balance adherence to their community standards with the interest of the public in hearing from government leaders?
Is “community governance” sufficient to address content issues on scales as large as Facebook, Twitter, or TikTok? How might such an approach aid or limit Free Speech compared to what users currently do on social media sites with reporting, flagging, and other complaints?
Should the U.S. government regulate social media companies? Why or why not?
Should there be “democratic accountability” over companies’ content standards? Why might we not trust the government to take charge of content moderation standards? Why might we not trust the private companies to continue doing so?
What lessons should we take away from how other countries are attempting to regulate social media platforms? And how do we deal with the fact that Free Speech rules online cross borders?
Do you agree that the First Amendment was intended to “protect the process of self-government”? Would regulating social media hinder or help that goal?
Has Congress abdicated its responsibility to the public in allowing profit-oriented tech platforms to set the rules for what people can and cannot say online?
Has Sec. 230 harmed or helped Free Speech online?

Activity

Click on these themes below: Social Media + Legal Action + Artistic Expression

Discuss: What does this confluence of stories with these filters tell us about free speech issues and social media? Free speech and the ability to post online?

Themes

Artistic Expression

A pro-Trump mural vandalized with the slogan “stop white supremacy.” A television reboot canceled after a racist remark from its star comedienne. A painter denied a venue after previous sex offenses came to light. University productions of vintage theater works canceled because of language that now seems insensitive. Artists are traditionally seen as having broad creative freedom to express themselves, yet the national climate and divisions along lines of identity have demonstrated just how political art can be. These cases underline that no art form — from theater to sculpture to music — is free from society’s battles about speech.

Foreign Policy

Though less so in recent years, the United States has often sought to expand freedom of expression beyond its borders as a condition of its relations with other countries. Is it right to do so? As speech freedoms are threatened abroad by increasingly authoritarian leaders — and those who embolden them — more and more individuals are likely to be prevented from telling the truth about conditions in their countries. Often inadvertently, U.S. leaders have also complained about Americans’ freedom to criticize, oblivious to the message this sends to foreign leaders.

Hate Speech

For decades, activists have proposed that hate speech — speech that disparages a particular group of people — be restricted in certain arenas. In some universities, for instance, student activists have sought to ban speakers who express openly racist or anti-LGBTQ views. While advocates of civil rights and social justice argue that Free Speech is often used to perpetuate stereotypes and hatred against long-marginalized communities, strict interpreters of the First Amendment tend to agree with a famous line from former Supreme Court Justice Oliver Wendell Holmes, who wrote in a 1929 opinion that the principle of free speech is not “free thought for those who agree with us, but freedom for the thought that we hate.”

Heckler’s Veto

There is seemingly a script for Free Speech disruptions on college campuses: A political provocateur is invited to campus, and protesters agitate against him or her with the aim of precluding the speaker from delivering a talk. This kind of disruption — called “the heckler’s veto” — is repudiated everywhere by experts on First Amendment jurisprudence, who claim that this combative practice is not the way to settle disputes in our society. But some also argue that protesters are guaranteed the right to heckle or even silence a speaker by the First Amendment. Others still take issue with the idea that virulent racism or other threatening speech can be calmly discussed and analyzed.

Identity

Almost any aspect of one’s life can be considered a marker of identity: Beyond race and gender, people cite factors like ability, age, sexual orientation, citizenship or immigration status, and religion as definitional elements of who they are. And Americans today often speak of the communities that form around those identities with an astounding dearth of knowledge about the history that has shaped and informed those experiences. Sometimes, ignorance about these issues can lead to outright combativeness. As people grapple with how to live their identities in a public way, they may encounter the vitriol of those who don’t want to accept their place in society. Should the state protect the views of those who allegedly wish to invalidate the identities of others?

Legal Action

In September 2017, white supremacist Richard Spencer sued for a right to speak on the campus of Michigan State University, a public, land-grant college. Similar legal action took place, with varying results, at the University of Cincinnati, the University of Florida, and Penn State University. Because the right to Free Speech is enshrined in the First Amendment to the U.S. Constitution, those initially denied a platform to speak — often because they appear to present a threat to public order — have had their way after arguing in court that a public space cannot deny anyone a soapbox. These disputes frequently result in civil lawsuits as well as administrative investigations.

National Security

Although the days depicted in Steven Spielberg’s film, “The Post” — with a war in Vietnam, an embattled White House, and the classified Pentagon Papers — are long gone, the government continues to claim it has an interest in keeping certain secret material from the public eye. Massive online leaks, such as the one undertaken by Edward Snowden, a former CIA employee and intelligence analyst, have led to the discovery of civilian surveillance programs orchestrated by the National Security Agency. Meanwhile, former President Barack Obama used the power of the executive to prosecute more leakers under the Espionage Act than all previous presidents taken together, highlighting the tension between the country’s interest in keeping the homeland secure and the public’s right to know how its business is being conducted.

Press

“The only way to assert the right to publish is to publish,” once said Ben Bagdikian, a Washington Post editor who played a pivotal role in keeping the Pentagon Papers public, after the New York Times had been temporarily restrained from publishing the documents. Just a few days later, the Post was also taken to court by the government for doing exactly that: exercising freedom of the press. The modern-era attacks on the media come from all corners, including the White House, which calls mainstream news outlets “fake news” and their journalists “enemies of the people.” Yet the press is one of the stalwart avenues for the defense of Free Speech, and individuals from all political stripes take to op-ed pages to express their (sometimes incendiary) opinions.

Professional Consequences

The concept of academic freedom is frequently invoked when to defend a professor’s incendiary comments in the classroom. But posted online, the same comments could cost the professor his or her position. Because not all universities are publicly funded, competing interpretations of exactly what speech is protected have emerged. Common disciplinary actions include removing professors from teaching, placing them on academic leave, or, particularly in the case of adjunct faculty, firing them outright. The career disruptions go beyond academia, too: in October 2017, a government contractor in Virginia was fired from her job after being photographed giving the middle finger to the presidential motorcade as she bicycled past.

Protest Politics

The First Amendment guarantees the right to assemble, but in recent years that principle has come under increased scrutiny. Whether it be state legislators who want to mitigate consequences for drivers who “accidentally” hit demonstrators or attorneys in the District of Columbia attempting to indict journalists and nurses for rioting they were not a part of, the protest scene in the United States is beginning to resemble the street battles that took place in the Vietnam War era. And as organized political movements have drawn millions for the Women’s March in 2016 or the Families Belong Together March in 2018, the politics of protest are not likely to mellow anytime soon. Does the state ever have a legitimate interest in restricting — or even punishing — protests?

Social Media

Social networks have proven to be the most difficult arenas in which to debate Free Speech. Are they supposed to be a replica of the public square, where nearly any opinion deserves amplification — and scrutiny? Or are they meant to provide a space free of hate speech and misinformation, where users can feel safe communicating their ideas about the world around them? Companies such as Facebook and Twitter have vowed to combat rhetorical bile on their platforms, but have not given the public much insight as to who decides what type of content should be censored. And social content can be permanent: if a user chooses not to delete a post, it can come back to haunt him or her years later, potentially causing career disruptions. How and where to draw the lines in these increasingly popular platforms are among the defining questions for Free Speech today.

Violence / Threats

Professors fearing for their lives as they receive death threats. Shattered storefronts in Washington, D.C., blocks away from a presidential inauguration. Bedlam in Charlottesville as a self-avowed neo-Nazi drives into a crowd of counter-protesters. The link between violence or threats thereof and Free Speech only seems to be getting closer in the United States, and it seems to defy all reason that these incidents continue to occur when the highest court has historically held that speech that incites or directly leads to violence can be restricted.

Type

Enhanced Entry (contains Podcasts, Videos, or Timeline)

Tracker Entries

This course module was prepared by Grace Chisholm ’22, who majored in government and minored in Spanish and religion, ethics, and world affairs. Originally from Fairway, Kansas, Grace was an associate board member of the Georgetown University Lecture Fund and is interested in public policy and law focused on advocacy.