The right to Freedom of Speech has been a contested topic since long before the Trump Administration. Groups generally classified as supporting conspiracy theories faced this during the entirety of the Obama administration, even when the information was proven to be true.
However, as the Trump Administration came into power, social media giants and “Big Tech” have put their focus on a wide range of conservatives, starting with the banning of Infowars from all major platforms. Lesser known is the fact that it wasn’t just Alex Jones who got the axe. Pages with libertarian values, constitutional messaging, or general anti-establishment sentiments received similar treatment.
The brazen censorship has undoubtedly reached a new level, playing a significant role in the 2020 election, and now with the complete removal of the President of the United States from all platforms. This seems to have finally gotten the attention of conservative media who is now sounding the alarm, while those on the left are praising such efforts.
It is the responsibility of these social media companies to uphold Freedom of Speech. Not only is it a moral obligation, but it is also set in precedence of supreme court rulings. While your average libertarian will try to convince you that private corporations can do whatever they want, we will look at why this form of thought is limited when it comes to the likes of Facebook and Twitter.
Social Media is a Town Square
Dick Costolo, former COO and CEO of Twitter, publicly cited Twitter as being a global town square:
“…we like to say Twitter is the global town square, it’s all public, real time conversational and widely distributed, and public is the first word in there. The fact that it’s all public and broadcast, and not, you know, a private network conversation makes some of these things easier for us to deal with.”
Costolo of coarse was actually defending the use of user data in highlighting the public nature of social media as a business. However, you cannot reap the benefits of public information and maintain the privilege of private operations at the same time.
In fact, the very nature of social media whether it is Twitter, Facebook, or the lesser known platforms such as Gab or MeWe; the goal is community. Without the public community, you do not have a platform.
Marsh v Alabama, 326 U.S. 501 (1946)
The Supreme Court ruled that a town square, regardless of private ownership, must adhere to the rights guaranteed under the first and fourteenth amendments of the constitution.
A private company, using privately owned property, built a town for their employees. Seeing the town as private property, it was the viewpoint of the company that they could impose their rules without regard to constitutional restrictions imposed on government.
The supreme court ruled:
“Whether a corporation or a municipality owns or possesses a town, the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free.“
We have already established that the mere essence of social media is built on the premise of the town square. Arguing that it is not applicable because it is a virtual construct is as illogical as saying that the second amendment only applies to muskets. Such an argument is only fueled by intent to subvert the rights of the people.
Prager University v Google (2019)
One argument that has been presented in attempt to justify the censorship of individuals on social media is the ruling in favor of YouTube moderating content presented by Prager U.
“…despite YouTube’s ubiquity and its role as a public-facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment.”
YouTube acts as a broadcasting platform, requiring users to select their licensing options for videos that are hosted on the platform. The only community aspect is the ability to have commenters, which itself does not constitute a social media. Instead, it operates as a broadcasting platform similar to that as cable news networks, and was treated as such.
The Supreme Court cited Manhattan Cmty. Access Corp. v Halleck, 139 S. Ct. 1921, 1930 (2019) which ruled that Manhattan Community Access Corp had the right to restrict and control the content provided on their network.
This precedent cannot be extended to social media platforms such as Facebook and Twitter because they are not private forums, but instead are in fact a public forum focused on community and therefore obligated to freedom of speech.
Section 230 Needs to be Updated and Amended
Section 230 is upheld as a means for tech platforms to be absolved of the liability of content provided by third party or private users. This is a protection that should be fully supported. No company or service should face legal penalty for the actions of someone else.
However, it also provides protections for companies to:
“…in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected”
This makes sense to implement age restrictions, parental controls, etc. However, there has been no guarantee to the mentioned constitutionally protected material. To this point, tech giants act as if they are completely outside of the reach of the constitution due to the virtual nature and private ownership of their services.
This must be changed, and it must be changed now. Freedom of Speech is one of the most fundamental foundations of human rights, and must be protected from corporate conglomerates seeking to act as government regulators where government has no jurisdiction.