The shift from analog to digital for all forms of content and communications raises questions we have not had to think about, namely the misfit between traditional regulatory and legal norms with internet-based “everything.”
The tensions are broad. Where most people do not have to think about the difference between “common carrier” or “utility” regulation and realms of life that should not be so regulated, most people seem aware of thorny issues related to media and social media.
Some issues relate to civility, but that necessarily has implications for content moderation. And content moderation requires some imposition of “values” that have potential “freedom of thought” or “freedom of speech” consequences, even if the stated view is simply to control spam, rude and obnoxious or threatening speech.
Without content moderation, spam can overrun sites, for example. Without enforcement of civility rules, sites become dangerous places where bullying happens, not just rudeness.
Worse, even where freedom of speech is guaranteed by law, such laws only protect private actors from government action. The U.S. First Amendment to the Constitution only bars action by government entities. The protections actually were not meant to constrict what private entities might publish or say.
So it is not so clear--or easy--to apply the desire for free thought and speech in a practical way to private actors who cannot be compelled to do so. Some might note that a comprehensive theory of free speech protections as applied to government has not been developed.
A growing concern in some quarters is how freedom of expression is protected not from government action but by the actions of platforms. Indeed, some call for greater restriction of free speech on platforms, in the name of so-called hate speech. Others say the restrictions are not equally applied to all speech, and result in the suppression of some political ideas.
If we assume that the purpose of the First Amendment is to protect freedom of expression in a democratic society, then new media formats and new platforms can raise new issues. And, as is common, the matter is complicated.
The First Amendment has generally been interpreted to protect the rights of “speakers. But the owners of new platforms (social media, in particular) say their users are the “speakers,” not the platforms. Even if jurists wished to extend some First Amendment protections beyond “government” entities, legal concepts would have to come to a decision on who the “speaker” is, to protect the speaker’s rights.
In other words, are the users of a platform the speakers, the platform itself, or some combination. Worse, is it the speakers or the audience whose “free thought” rights are to be respected?
Traditionally, citizens are to be protected from government restriction of free speech.
But the places where “speech” occurs also matter. Public forums--such as public parks and sidewalks--have always been viewed as places where citizens have the right of free speech.
Nonpublic forums are places where the right of free speech can be limited. Examples are airport terminals, a public school’s internal mail system or polling places.
In between are limited public forums, where similar restrictions on speech are lawful, especially when applied to classes of speakers. However, the government is still prohibited from engaging in viewpoint discrimination, assuming the class is allowed.
The government may, for example, limit access to public school meeting rooms to school-related activities. The government may not, however, exclude speakers from a religious group simply because they intend to express religious views, so long as they are in a permitted class of users.
Those protections have been limited to state action, It is government entities (local, state, or federal) that are enjoined from infringing the right of free speech. Protections have not been deemed applicable to private entities.
There has generally been in other words, no First Amendment right of free speech enforceable on private firms or persons, with some exceptions.
Common carriers--such as telcos--must allow communications between any users who are willing to pay the tariffs. Telcos cannot censor what those users say. Such regulation--including public accommodation, water and electrical utilities or railroads--is not generally regarded as a direct “free speech” issue, but an issue of commerce.
A common carrier is a person or company that transports goods or people for a fee, the principle being non-discrimination. A common carrier must provide its service to anyone willing to pay its fee, unless it has legitimate grounds for refusal.
If state governments decide to create laws protecting free speech from social media or other private firms, that would at the very least raise an issue: Can the federal government, acting under the guise of the First Amendment, move to restrict state action extending the zone of free speech to include dominant private platforms?
That might involve a novel regulation of social media platforms as common carriers of a sort. As voice service providers are not, as a rule, allowed to censor what their customers and users may say, so platforms might be barred from such censorship as well.
That would clearly be a principle that it is the users--not the platform--which has “free speech” protections, as it relates to posted content. Platforms would not surrender their political rights as entities.
That would plow new ground, but First Amendment law has evolved over the years in an ad hoc way, all along. It would be a contentious argument, to be sure. In the case of social media platforms, we would have to decide who the speaker is, to determine whose rights are to be protected.
Alternatively, some cases have essentially concluded that it is the audience--the listeners--whose rights are to be protected. That has happened mostly with radio and TV broadcasting, and with cable TV regulation to any extent. But that is arguably not the general principle.
Generally, courts have decided it is “speakers” whose rights are to be protected. There are caveats. It has generally been the owners of assets whose rights are protected, in a practical sense: printing press owners, early on; then magazine or newspaper publishers; then radio broadcasters; TV broadcasters; then cable companies and networks.
Social media has not yet been addressed. But issues seem to be mounting. And that generally leads to court cases, which leads to Supreme Court action, which might set new precedents.
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