U.S. Supreme Court Justice Clarence Thomas writes in a court order denying a writ of certiorari that some legal immunities granted to internet platforms under section 230 of the Communications Decency Act have been interpreted too broadly, a signal that at least one justice of the Supreme Court would narrow the scope of section 230 in ways that create more legal liability for major internet app platforms.
Section 230 grants internet platforms immunity from prosecution if a third party uploads defamatory or otherwise illegal content. “Nowhere does this provision protect a company that is itself the information content provider,” Justice Thomas writes.
In other words, when acting as a publisher, or making editorial judgments, a platform is not absolutely shielded from legal action otherwise available when libelous content is published by any media outlet.
In some sense, the discussions about section 230 involve the issue of freedom of speech, not just platform protection from third party speech and content or antitrust issues.
Some might argue there is a possible way that First Amendment protection could be gained by third party users of a platform. The “public function exception” turns a private concern into a government operation when performing an “essential government function.”
That seems a stretch.
Providing an online platform or a social media site or search engine results does not clearly meet that test.
But big digital platforms, especially Facebook, Google, YouTube and Twitter, are facing growing scrutiny about monopoly power and censorship. Consider the matter of political censorship, complaints which are growing louder.
Traditionally, the right of free speech, as enshrined in the First Amendment to the U.S. constitution, protects speakers from government censorship, but only government action. There is a long legal history that extended First Amendment protections to new electronic media.
The internet, though, and particularly the rise of social media platforms, seems to raise entirely new questions, such as whether free speech rights can, or ought to, be extended to protect citizens from censorship by private corporations. That is almost entirely new ground, and up to this point, the right of free speech does not exist on any social platform in the United States.
But some believe the traditional right of free speech, protecting citizens from government censorship, should be expanded in an era where “certain powerful private entities—particularly social networking sites such as Facebook, Twitter, and others—can limit, control, and censor speech as much or more than governmental entities,” argues David L. Hudson Jr., Justice Robert H. Jackson Legal Fellow at the Foundation for Individual Rights in Education.
The issue is whether it is possible to enlarge the space within which constitutional protections on free speech are expanded, yet also avoid damage to private property rights of platforms. And that is the issue. It is not clear that regulation can do so, whether the issue is a remedy for business monopoly or the promotion of free speech.
You might think the simplest answer is to simply allow people to speak their minds, with the exceptions of harassment and intimidation, threats of violence or promotion of criminal acts. But therein lies the problem, given the aggressively uncivil behavior one now sees on social media.
What one speaker sees as the free expression of ideas will be seen as aggression and threat from another. Some 30 years ago this was not really a problem. People were simply more polite. But it is hard to mandate polite behavior.
Many solutions seem to require “more regulation of platforms” which tends to mean “less freedom” for platforms, if arguably in pursuit of “more freedom” for speakers. And that raises an old issue: “who” has the right of free speech and its benefits, the speaker or the reader or listener.
The U.S. Bill of Rights, the first 10 amendments to the U.S. Constitution, provided that “Congress shall make no law” prohibiting the free exercise of speech or the press. Note the language, which protects people as speakers and the “press” as a speaker from government restriction.
Later broadcast media regulations sometimes shifted the focus a bit to the rights of listeners or viewers, rather than speakers. Generally speaking, however, the protected right is held by “speakers,” not “audiences.”
Perhaps the seminal case was Red Lion Broadcasting Co. v. FCC (395 U.S. 367, 393 (1969), which allowed some content regulation of broadcasting for reasons of promoting the public interest. The point is that speaker rights were somewhat subordinated to the rights of viewers and listeners (the public interest).
Complicating matters further is the issue of “who” the speaker is, in the context of a social media site or business: the platform or the users of the platform. Up to this point, it is the rights of the platform as “the speaker” which have been upheld, even if a platform supposedly is a neutral matchmaker between users who might, arguably, be considered the actual “speakers.”
The approach prioritizing the rights of audiences (listeners, readers, hearers) is exemplified by Alexander Meiklejohn’s book Free Speech and Its Relation to Self-Government, in which he says “what is essential is not that everyone shall speak, but that everything worth saying shall be said.”
All that assumes a singular public interest could even be identified.
“Speakers in the United States have few or no legal rights when platforms take down their posts,” according to Daphne Keller, director of the Program on Platform Regulation at Stanford's Cyber Policy Center.
Some use the analogy of must carry rules once imposed on TV broadcasters. To date, lawsuits likening platforms to “public forums” have failed.
Also, there are different issues related to content: removal of items that violate terms of service, and the way that ranking systems operate. The former deals with removed content; the latter deals with search ranking algorithms.
The former issue is similar to the ways stories are constructed by news media, for example. Are opposing views treated fairly and with neutral adjectives? Is the amount of space given to opposing views roughly equal?
The latter is similar to the choice of stories to run, and not the way content is treated once a “publish” decision is made. Which stories are deemed newsworthy, and which are not?
So far, U.S. courts have held that private platforms do not have a legal obligation to carry user speech. Still, some argue that dominant platforms are de facto gatekeepers, and should be regulated as “essential providers” of political speech, or even utilities, with a common carriage obligation.
But those claims of speaker rights also bump up against the First Amendment rights of the platforms as speakers. Ranking and removal of content is an exercise of editorial judgment, in other words.
Largely unexamined--so far--are various methods of giving more control to platform users, says Keller. It is not easy, but some advocate more end user content control settings. The problem is that people disagree about what constitutes “hateful speech.”
Some may want platforms to carry all legal speech. Others might simply prefer more curation, allowing civil dialogue.
“One possible approach would let platforms act against highly offensive or dangerous content
but require them to tolerate more civil or broadly socially acceptable speech,” argues Keller.
Again, the problem is disagreement about how to identify such offensive or dangerous content, and not simply because the censoring algorithm or reviewer simply disagrees with the expression of those views. The same sort of problems arise with efforts to apply “fairness doctrines” that essentially preserve the rights of the listener, rather than the speaker. And all such rules limit free speech rights of speakers and platforms.
Another approach distinguishes between “hosted” content (allowing anyone to speak) and “recommended” content that appears in news feeds, for example. The former is more akin to a town square, the latter more akin to the “curated” news feeds or search results.
Yet others might prefer some form of unbundling the ranking and sorting algorithms, allowing third parties to create their own curated feeds. None of these would be simple. None would be free of some limitations on free speech. And most could negatively affect the monetization models that make the platform services possible.
And yet we might be moving in such directions in any case. The recent issue of political protests by professional athletes raises the issue of whether constitutional free speech rights actually have standing even in the case of private firms.
Traditional legal doctrine has been that private actors are not constrained by the Constitution generally, under the “state action” doctrine, which holds that “the First Amendment governs only governmental limitations on speech (Nyabwa v. Facebook, 2018 U.S. Dist. LEXIS 13981, Civil Action No. 2:17-CV-24, *2 (S.D. Tex.) (Jan. 26, 2018).”
The state action doctrine holds that only the government or those acting on its behalf are subject to constitutional scrutiny. Non-governmental conduct therefore lies beyond the Constitutional protections.
On the other hand, the exercise of free speech has recently seemed to be invoked as a right by major league sports figures whose kneeling during the playing of the national anthem is said to be an exercise of free speech rights not traditionally protected by the First Amendment.
“The time has come to recognize that the reach of the First Amendment be expanded,” says Hudson.
The U.S. Supreme Court recognized this reality last year in Packingham v. North Carolina (2017):
“While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular,” the U.S. Supreme Court has said in the case of Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017).
The argument is that social media networking sites have become the modern-day equivalent of traditional public forums like public parks and public streets.
“Public communications by users of social network websites deserve First Amendment protection because they simultaneously invoke three of the interests protected by the First Amendment: freedom of speech, freedom of the press, and freedom of association,” said Benjamin F. Jackson in a 2014 law review article (Benjamin F. Jackson, Censorship and Freedom of Expression in the Age of Facebook, 44 N.M. L. Rev. 121, 134 (2014)).
“Federal courts can and should extend First Amendment protections to communications on social network websites due to the importance these websites have assumed as forums for speech and public discourse,” he argued.
As with debates over network neutrality, where there arguably is a difference between permissible network management and other practices some argue are violations of the basic principle of free access to lawful internet apps and services.
For example, social network websites may censor communications in order to prevent convicted criminals from preying on victims, accusers, or witnesses or prevent certain users from harassing or intimidating other users without violating free speech principles.
Censorship of pornographic or violent materials likewise could help create and maintain an environment acceptable to users of as many ages and sensibilities.
Also, censorship might be necessary to prevent harm to the website due to hacking and phishing attacks and comply with copyright and trademark laws.
The Supreme Court’s reasoning in Reno v. ACLU ( 521 U.S. 844 (1997) supports treating communications on social network websites as constitutionally protected speech.
To be sure, application of First Amendment principles to private actors would raise the issue of impairment of their property rights. To use the telecommunications analogy, that would be similar to common carrier regulation of prices and terms of service.
There is legal precedent. Under the public function exception, “the exercise by a private entity of powers traditionally exclusively reserved to the State” constitutes state action (Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974). That has not generally been a winning argument in the courts.
But it might be argued that social networks resemble the public spaces the Supreme Court has chosen to protect in both its public function exception (Marsh v. Alabama, 326 U.S. 501 (1946) and public forum doctrines.
The Supreme Court has held that the private property rights of a company did not “justify the State’s permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties.”
The public forum doctrine was pioneered by Hague v. Committee for Industrial Organization (307 U.S. 496 (1939) and Schneider v. Irvington (308 U.S. 147 (1939). Under the public forum doctrine, restrictions on speech in public spaces that have traditionally served as a venue for free expression and debate are subject to special constitutional scrutiny.
There also is an entwinement exception, though that also would face high scrutiny. Under the entwinement concept, a non-governmental actor might be deemed a state actor if the firm has acted together with or has obtained significant aid from state officials, beyond mere licensing, regulation or financial aid.
Courts have thus far rejected claims that social network websites or their parent companies show “entwinement.” Gilmore v. City of Montgomery, 417 U.S. 556, 569 (1974);
Some believe the “Essential Facilities Doctrine” might apply. That doctrine states that if a monopoly power is found to own a facility that is essential to other competitors succeeding in the marketplace, the monopoly must provide reasonable use of that facility. The concept has been used with respect to railroads, bridges, even operating systems and communications facilities.
It is not clear whether it can be applied to platforms, as it has been a tool for antitrust analysis and intellectual property rights, not First Amendment freedom.
On the other hand, the essential facilities has been applied in the case of operating system platforms, which some might liken to the role played by social media or search engines. On the other hand, the U.S. Supreme Court has not definitively upheld the doctrine as constitutional.
While there are five potential elements of the Essential Facilities test, control of the essential facility by the monopolist or the competitors’ inability to practically or reasonably duplicate the essential facility is about all that is necessary for a court to require monopolies provide access to competitors.
That might be easy to see in the case of railroads, public communications networks or bridges. It will be much harder to convince courts that the doctrine protects user free speech rights on platforms.
