Section 203 of the Telecommunications Act of 1996 makes clear that platforms are not responsible for the content posted by users of the platforms. That quite arguably has allowed platforms to build on third party expression without fear of legal action. If a user of a platform engages in “unprotected speech,” such as defamation, obscenity or speech in pursuit of a crime, the platform is not considered legally liable.
On the other hand, potential users are not protected from decisions made by platform owners not to publish user content, either, and section 203 prevents legal action by users who feel aggrieved by the content moderation practices, whatever they happen to be. The issue in that case is a breach of acceptable community standards, platforms have argued. Others say it is censorship, a violation of free speech norms, and possibly rights.
It’s a huge minefield, to be sure, but the protection of political free speech has--since the advent of electronic media--had to answer the question of “whose rights are protected?” In some ways it is a zero-sum game: every winner has to be compensated by a loser.
If it is the “speaker” who has the right, the “listener, viewer or reader” (the public at large) does not have the protected right. If it is the “listener, viewer or reader” (the public) who has the right, it is the speaker whose rights are circumscribed.
The argument might be that if and when social media sites threaten the use of the medium for political speech, courts might approve of content-neutral regulations intended to solve those problems.”
As always, the issue also includes “what is political speech?” In the modern era, that is understood more broadly than it once was. The Supreme Court has extended the First Amendment’s protections to individual and collective speech “in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.
There also are some narrow areas where First Amendment protections have been held not to hold. Obscenity, defamation, fraud, incitement, fighting words, true threats, child pornography and speech integral to criminal content are not protected. The problem is that people of good will can disagree about when those conditions exist.
Courts also have upheld “time, place and manner” restrictions that are content-neutral limitations imposed by the government on expressive activity.
Such restrictions come in many forms, such as imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property.
There are at least three possible frameworks for analyzing governmental restrictions on social media sites’ ability to moderate user content. First, social media sites could be treated as state actors who are themselves bound to follow the First Amendment when they regulate protected speech https://fas.org/sgp/crs/misc/R45650.pdf.
If social media sites were treated as state actors under the First Amendment, then the Constitution itself would constrain their conduct, even in the absence of specific legislative action. In this framework, the public essentially has the protected right.
The second possible framework would view social media sites as analogous to special industries like common carriers or broadcast media. Likewise, in this framework the public has the protected right.
Past applications of political content fairness have sometimes been shaped by the concept of preserving freedom “for the listener or viewer,” even when shaping or restricting the freedom of the speaker.
That has been most clear, in the United States, in television or radio broadcasting, based on the idea that private firms are using public resources. The same idea was extended to cable TV operators, who use public rights of way.
On the other hand, social media sites could be considered to function as do news editors. In that case, the publisher has the protected right.
If social media sites were considered to be equivalent to newspaper editors when they make decisions about whether and how to present users’ content, then those editorial decisions would receive the broadest protections under the First Amendment.
As a practical matter, speakers also can exercise prudence, manners, judgment or courtesy in their political speech. Speakers have the right to be rude, wrong, loud or boorish, but might choose not to do so. We call that civility.
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