There is a battle we face in our contemporary society involving protecting freedom of expression and mitigating harm. A great challenge is formed in how we safeguard these protections, particularly through the lens of the various roles each sector play in society: private internet companies (social media platforms), and government (policymakers). It’s important to note that while each of these sectors may play a significant role, there are blind spots that each of these institutions need to be aware of when enacting plans to assist in safeguarding free speech.
- Private Internet Companies/Social Media Platforms
Private internet companies which include social media platforms have proven to be key institutions in our modern digital age in how we express ourselves freely online. To put it simply, it’s the modern equivalent of the “town square” when sharing views and expression. The main functions these companies have in ensuring free expression is being promoted on their platforms is to organize public conversation/discourse in a way that allows individuals to communicate with each other. These functions make it necessary for each of these platforms to have a set of standards, or a “terms of service” which applies what can and can’t be posted to the platform, which can best be compared to the standards that were set in place with more traditional forms of mass media found in the 20th century, like newspapers and television broadcast. While these companies are in the private sector and are therefore not obligated to adhere to the same standards for protecting free speech as government entities, most mainstream online services lay out the behavioral conduct expected in their terms of service as a way to boost safety and civility across their site for all users.
While I would argue having a set of rules online is necessary in order to facilitate public conversation in a safe way, it does pose some concerns and blind spots that has had the adverse effect on free speech. Most of the social media we use today are owned by publicly-traded conglomerates such as Meta or Google with an allegiance to shareholders’ and advertisers perception. This business model oftentimes prioritizes brand safety and algorithmic engagement over free expression principles. These terms of services often simply act as legal, risk management for the company over prioritizing free expression for its users. Because these companies operate as private institutions and are thus not constitutionally obligated to protect online speech, it is important to maintain a level of transparency in the standards employed between the platform and its user base. Privately suppressing content via making it less visible, aka “shadow-banning” accounts without notifying the user hinders the level of transparency between the service and its user base that should be fostered. One method that has been implemented by Meta in order to increase transparency surrounding how online content is moderated across all digital platforms is to introduce the Oversight Board surrounding content moderation cases brought fourth to them. It’s important to note this organization was founded and receives by Meta, but works as an independent body from them to ensure fairness in their rulings. It has often been compared to the United States Supreme Court in how it’s structured. Not only are the rulings this committee puts forth binding for Meta, the Board also contributes a plethora of “recommendations”, which not only shapes Meta’s own social media platforms’ conduct, but sets a standard for other digital platforms as wells. In the five years the Board has been active, they have issued over 200 decisions, with over 75% of their over 320 recommendations in their rulings implemented. While it is unrealistic for the Oversight Board to be able to tackle every case that involves a questionable infringement on free speech on Meta platforms, the level of accountability and transparency is a net benefit for the industry and sets a standard for other social media platforms to follow in regards to safeguarding free speech on their application.
2. Government
The most significant emergent threat that is prevalent to the government’s role in safeguarding free expression is ensuring there is a line between First Amendment protections so as not to lead to authoritarian censorship and when that may spill over into political violence. Many of the tests we have which helps determine legitimate threat of harm were established via the Supreme Court from cases in the 20th century. Take the landmark case, Brandenburg v. Ohio, which gave us the “imminent lawless action” test which deems speech not to be protected if it incites a violation to the law that is likely to occur within a quick, timely manner. A large part of the government’s role in safeguarding this is to ensure these previously established rules are being applied fairly and equally across all citizens and actions that test first amendment related protections.
Within the past decade, we have seen a rise of political violence emerge in the United States. Two of the most infamous examples of this were the January 6th Capitol Riot and mass Black Lives Matter protests and riots throughout the country. Both of these examples are notable because they highlight a time in recent US events where both mainstream political ideologies felt compelled to exercise their First Amendment rights through a wide, organized effort, yet there is discourse over whether many of the actions that were took overstepped these individuals’ constitutionally protected freedom of expression. In the case of January 6th, many attribute Donald Trump to have incited the violence that occurred due to his language and rhetoric used following his defeat in the 2020 election, urging supports to “fight like hell” or they won’t have a country anymore. While this has been a widely contentious topic for debate on whether Trump is responsible for sparking the insurrection on this day, it does not detract from the actions of any who showed up to the Capitol and engaged in violence and unlawfully breached the Capitol building. On the other side of the spectrum, with the mass Black Lives Matter protests that occurred throughout the Summer of 2020 following the death of George Floyd, it is important for the judiciary and the court of public opinion to discern the difference between the right to peaceful assembly and protest, and unlawful riots that incorporate violence and theft. In both of these extreme cases that have demonstrated what may or may not fall under constitutionally protected freedom of expression, I believe a large part of the government’s role falls under the judiciary. Specifically, the punishment for an infringement that goes beyond protected speech into lawless action is fair and just, regardless of political affiliation or partisan ideology leanings or bias.