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With the emergence of social media, communicating with the masses has become easier. Since its foundation, sites like Facebook and Twitter have been used to voice user opinions on friends’ and family’s posts and thoughts on various world issues. Another tool used as a modern-day extension of First Amendment Rights, social media and the freedom of speech are both valued and weaponized. The line between social media and breaching First Amendment Rights has become muddled, leaving many to figure out where one is in violation of the other.
Former President Donald Trump used Twitter as his personal communication forum and launched directives, laws and his own rhetoric to followers, constituents and enemies. The former president’s tweets became so offensive and misinformed, the social platform Twitter, also owned by Facebook, decided to ban his accounts on both platforms for spreading misinformation and falsehoods about the pandemic, election rigging and the insurrection and attack on the nation’s capital.
“First Amendment rights apply to the government: federal, states, counties and cities. The Constitution says that ‘Congress shall make no law … prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press.’ That rule has been applied to states and ‘arms of states’ or counties and cities, through the incorporation doctrine, but it does not apply to private individuals or organizations,” says Joseline Jean-Louis Hardrick, Visiting Assistant Professor at Western Michigan University-Thomas M. Cooley Law School. “So private companies, like social media companies, can regulate the speech that occurs on their platforms. That being said, there are concerns generally about companies like Facebook or Twitter having so much power over a medium used to communicate so widely.”
As social sites hold the private power to dictate language and its use on their platforms, First Amendment concerns, legally, may not apply to them. Unlike television and radio where commissions are erected to regulate and censor broadcasts, no such party exists for social media making it a breeding ground for private citizens to express their thoughts loud and proud. For one social media user, platforms can be used to promote change from big companies and urge them to make good decisions for the communities they serve.
Charles Blackwell is a local activist who uses social media to address government transparency and corruption in cities across the state. Through the Freedom of Information Act (FOIA) requests, a series of lawsuits and pressure from social media, this activist is able to use multiple platforms to have access to officials and share opinions of residents.
“I describe my work on social media as a tool of directly engaging with public officials and the ability to voice my displeasure or criticism of their actions, policies and conduct in real time,” says Blackwell. “Years ago, citizens would have to stand on a street sidewalk, outside city hall or even attend a city council meeting to voice their thoughts to public officials. Social media now allows citizens, no matter where they are physically located at the time, to express themselves and petition the government at the palm of their hand and cellphone or computer.”
Since the aspect of free speech is just that, free, and private entities are able to regulate the verbiage that appears on their platforms, citizens and some lawmakers are starting to push back to challenge this idea. Freedom of speech and expression are both rights guaranteed by the Constitution, but as society and the world develops, regulations are beginning to fall into place to protect the advances of technology.
“The United States Supreme Court ruled in a 2017 court case called Packingham v. North Carolina that social media is entitled to the same first amendment protection as other media. Also, the Federal 2nd Circuit ruled in 2019 that President Trump could not block his critics from his social media page. So, the federal courts have set the precedent at the highest level of government that public official social media pages are subject to First Amendment protection and rights,” says Blackwell.
Although justice and technology have yet to catch up with each other, tech companies are continuing to allow free speech across their platforms. Lawmakers and tech developers are generations apart and that is reflected in the advancements of both media.
“The wheels of justice move slowly. The law is very behind and has a hard time catching up. Frankly, those who make the laws, whether legislators or courts, are not tech-savvy themselves for the most part. This gap in knowledge results in drawn-out litigation which takes years,” says Hardrick. “The tech industry is not going to wait around for legislators and courts to make up their minds about where tech fits within antiquated legal frameworks before innovating.”
The right of free speech is limited when the rhetoric causes harm or potential harm to a subject. Speech that is threatening in nature is unacceptable and punishable by law.
“Free speech involves many ideas. There’s the need to allow individuals to speak freely, even if we disagree with their statements and especially when the comments are unpopular. But there is also the need to protect individuals from hateful and harmful speech. Speech can go too far and the government is allowed to regulate it, just not completely restrict it,” says Hardrick.
For activists like Blackwell, continuing to push the envelope and challenge government entities via social media encourages others to get vocal about their city’s politics and regulations.
“Most citizens when they are cut off at public meetings or blocked on social media by a public official simply don’t have the money to hire a lawyer to fight for their rights. Luckily, I have self-taught myself the law and know how to file my own lawsuits and don’t have to wait around to find a lawyer. So, when I am a prevailing party in these lawsuits, I set a precedent in this state or area that the government can’t or should not violate these rights without legal consequences,” says Blackwell.