In the Age of Social Media, Expand the Reach of the First Amendment (2022)

Human Rights
by David L. Hudson, Jr.

The First Amendment only limits governmental actors—federal, state, and local—but there are good reasons why this should be changed. 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. A society that cares for the protection of free expression needs to recognize that the time has come to extend the reach of the First Amendment to cover these powerful, private entities that have ushered in a revolution in terms of communication capabilities.

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While this article focuses on social media entities, the public/private distinction and the state action doctrine are important beyond cyberspace. The National Football League’s reaction to Colin Kaepernick and other players “taking a knee” during the playing of the National Anthem is a pristine example of private conduct outside the reach of the First Amendment under current doctrine. But the nature of those protests couldn’t seem more public and cries out for a re-evaluation of the state action doctrine and the importance of protecting speech.

Speaking of speech, two key justifications for robust protection of the First Amendment right to freedom of expression are the marketplace of ideas and individual self-fulfillment. These justifications don’t require governmental presence. Powerful private actors can infringe on free expression rights just as much as public actors.

The first justification, the marketplace of ideas, is a pervasive metaphor in First Amendment law that posits the government should not distort the market and engage in content control. It is better for people to appreciate for themselves different ideas and concepts. It is traced back to John Milton’s free speech tract Areopagitica (1644): “Let Truth and Falsehoodgrapple; whoever knew Truth put to the worse in a free and open encounter?”

Individual self-fulfillment, often associated with the liberty theory, posits that people need and crave the ability to express themselves to become fully functioning individuals. Censorship stunts personal growth and individual expansion.

The point here is that when an entity like Facebook engages in censorship, individuals don’t get to participate in the marketplace of ideas and are not allowed the liberty to engage in individual selffulfillment— just like when a governmental entity engages in censorship.

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It is true that state action doctrine traditionally limits the application of the First Amendment to private actors. Earlier this year, a federal district court in Texas applied the traditional state action doctrine to dismiss a lawsuit filed by a private individual against Facebook. The court explained 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).)

After all, for about 140 years, the U.S. Supreme Court has explained that the Constitution and the protections it provides— aside from the Thirteenth Amendment’s ban on slavery and involuntary servitude— only limit governmental actors. Thus, traditional legal doctrine provides that private actors are not constrained by the Constitution generally. This is called the “state action” doctrine. It purportedly creates a zone of privacy and protects us from excessive governmental interference.

The Court developed the state action doctrine in the Civil Rights Cases of 1883. This case actually consisted of five consolidated cases in which private businesses egregiously excluded African-American plaintiffs from their privately owned facilities opened to the public (such as movie theaters, inns, amusement parks, and trains) on the basis of race. Theplaintiffs contended that such exclusions violated the Equal Protection Clause of the Fourteenth Amendment. However, the U.S. Supreme Court responded somewhat cavalierly “[i]t is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment.” (Civil Rights Cases, 109 U.S. 3, 11 (1883).) The Court said that there were no constitutional remedies available to these plaintiffs and that they would need to rely on the common law state protections. Sadly, there were no such state common law protections either.

Only Justice John Marshall Harlan I, the so-called “Great Dissenter” for his solitary dissent in this case, Plessy v. Ferguson (1896), and other decisions, recognized that his colleagues were allowing the government a free pass to discriminate against persons of a particular race with regard to the use of public facilities. He wrote that the “discrimination practised by corporations and individuals in the exercise of their public or quasi-public functions is a badge of servitude” that Congress could rectify under its powers under the Thirteenth and Fourteenth Amendments. (Civil Rights Cases, 109 U.S. at 43 (1883) (J. Harlan, dissenting).)

But, in 2018, speech takes place online much more so than it does in traditional public forums, such as public parks and streets. People communicate on social networking sites, such as Facebook and Twitter, more than in any offline venues. 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.” (Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017).)

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In his opinion for the Court, Justice Anthony Kennedy elaborated that the expansion of social media has contributed to a “revolution of historic proportions.” Id. at 1736. In other words, social media networking sites have become the modern- day equivalent of traditional public forums like public parks and public streets.

This societal development and change in communications capacities require that the antiquated state action doctrine be modified lest the law become ossified. The time has come to recognize that the reach of the First Amendment be expanded.

When a private actor has control over online communications and online forums, these private actors are analogous to a governmental actor.

This is not a novel thesis. Many others have advocated for this approach. Many legal scholars have recognized that when a private actor has control over online communications and online forums, these private actors are analogous to a governmental actor. For example, legal commentator Benjamin F. Jackson cogently explained in a 2014 law review article that “[P]ublic 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.” (Benjamin F. Jackson, Censorship and Freedom of Expression in the Age of Facebook, 44 N.M. L. Rev. 121, 134 (2014).)

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Decades earlier, the brilliant legal scholar Erwin Chemerinsky argued that the state action doctrine should be revisited and abandoned. He wrote that private censorship can be as harmful as governmental censorship. As applied to freedom of speech, he posited:

Freedom of speech is defended both instrumentally—it helps people make better decisions—and intrinsically—individuals benefit from being able to express their views. The consensus is that the activity of expression is vital and must be protected. Any infringement of freedom of speech, be it by public or private entities, sacrifices these values. In other words, the consensus is not just that the government should not punish expression; rather, it is that speech is valuable and, therefore, any unjustified violation is impermissible. If employers can fire employees and landlords can evicttenants because of their speech, then speech will be chilled and expression lost. Instrumentally, the “marketplace of ideas” is constricted while, intrinsically, individuals are denied the ability to express themselves. Therefore, courts should uphold the social consensus by stopping all impermissible infringements of speech, not just those resulting from state action. (Erwin Chemerinsky, Rethinking State Action, 80 N.W. U. L. Rev. 503, 533–34 (1985).)

Already, some state high courts interpret free expression provisions in state constitutions to provide protection to individuals involving private actors. For example, a few states apply their free expression protections at privately owned shopping malls. The New Jersey Supreme Court has applied the free expression provision of its state constitution to allow individuals to challenge restrictive bylaw provisions of private homeowner associations. The state high court wrote: “In New Jersey, an individual’s affirmative right to speak freely is protected not only from abridgement by government, but also from unreasonably restrictive and oppressive conduct by private entities in certain situations.” (Mazdabrook Commons Homeowners Association v. Khan, 210 N.J. 482, 493 (2012).)

The U.S. Supreme Court should follow these examples from state supreme courts to relax the state action doctrine. The Court should interpret the First Amendment to limit the “unreasonably restrictive and oppressive conduct” by certain powerful, private entities—such as social media entities—that flagrantly censor freedom of expression.

David L. Hudson Jr. is a Justice Robert H. Jackson Legal Fellow for the Foundation for Individual Rights in Education (FIRE). He also is a First Amendment Fellow for the Freedom Forum Institute. He is the author, coauthor, or coeditor of more than 40 books, including First Amendment: Freedom of Speech (Thomson Reuters, 2012), The Encyclopedia of the First Amendment (Sage, 2008), and Let the Students Speak!: A History of the Fight for Freedom of Expression in American Schools (Beacon Press, 2011).

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FAQs

How does social media affect the First Amendment? ›

The First Amendment protects individuals from government censorship. Social media platforms are private companies, and can censor what people post on their websites as they see fit.

What is the First Amendment in terms of media? ›

The freedom of the press, protected by the First Amendment, is critical to a democracy in which the government is accountable to the people. A free media functions as a watchdog that can investigate and report on government wrongdoing.

Should the First Amendment apply to all activity on the Internet? ›

Application to cyberspace: The recent Supreme Court decision in ACLU v. Reno (1996) established that cyberspace content cannot be limited to only that which would be acceptable to minors. In general, First Amendment protections for adult material have followed that material into cyberspace.

Does social media Help free speech? ›

Social media is a powerful tool of communication. It allows everyone from all sides of the platform to express themselves. Generally speaking, this is a good way to make the freedom of speech and information accessible to all. However, this perspective only works under the light of positive social media use.

What should be the limits of freedom of speech in social media? ›

Although we are free to say what we want, we are not allowed to express any opinion that offends, threatens, or insults groups, based on race, color, religion, national orientation, or disability (hate speech).

What does the 1st amendment mean in simple terms? ›

The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition. It forbids Congress from both promoting one religion over others and also restricting an individual's religious practices.

Should our First Amendment protect what people write on the Internet? ›

Instead, the court ruled that speech on the internet should receive the highest level of First Amendment protection — like that extended to the print media.

Why is the First Amendment the most important? ›

The First Amendment is widely considered to be the most important part of the Bill of Rights. It protects the fundamental rights of conscience—the freedom to believe and express different ideas—in a variety of ways.

How does the First Amendment apply to and digital communication? ›

Ruling unanimously in Reno v. ACLU, the Court declared the Internet to be a free speech zone, deserving of at least as much First Amendment protection as that afforded to books, newspapers and magazines.

How is the First Amendment used today? ›

If you're in the U.S., you have freedom of speech, religion, press, assembly and petition. The First Amendment is neither “left-wing” or “right-wing.” It can be used to push for social and political change, or to oppose change.

Why freedom of speech should be restricted on social networks? ›

Censorship of social media speech may not outweigh the benefit of forbidding a particular speech, but allowing complete free speech on social media may also have negative impacts, such as fostering cyber bullying or hate speech. Speech is not black or white, bad speech on one side and good speech on the other side.

What are benefits of social media? ›

Social networking services can provide an accessible and powerful toolkit for highlighting and acting on issues and causes that affect and interest young people. Social networking services can be used for organising activities, events, or groups to showcase issues and opinions and make a wider audience aware of them.

How should you exercise your freedom and responsibility in social media? ›

Tips for Responsible Social Media Use
  1. Own your image, personal information and how these are used. Pay close attention to the Terms of Use on apps and websites. ...
  2. Obtain permissions when posting videos or images of others on your networks. ...
  3. Scrub your accounts. ...
  4. Password diligence. ...
  5. Spread love, not hate.
25 Sept 2018

What is the impact of social media on the constitutional right to freedom of expression South Africa? ›

Although freedom of expression is a constitutional right, it is not an absolute right. If what you say, or publish via social media platforms, has a negative impact on the rights of another, then your right to freedom of expression may be limited.

What are the limitations of freedom of expression of the media? ›

In the International Covenant on Civil and Political Rights which sets out the right to freedom of expression, only two situations are described which justify its limitation: respect of the rights or reputations of others and protection of national security or of public order, or of public health or morals.

Should there be a limit to media freedom group discussion? ›

CONCLUSION: No, there should be no limits in media freedom because during this times, freedom of speech helps develop personal and life skills for a person. Such people can easily suggest their point can convince people very easily and take good decisions in life.

What is the impact of social media on the constitutional right to freedom of expression South Africa? ›

Although freedom of expression is a constitutional right, it is not an absolute right. If what you say, or publish via social media platforms, has a negative impact on the rights of another, then your right to freedom of expression may be limited.

Why freedom of speech should be restricted on social networks? ›

Censorship of social media speech may not outweigh the benefit of forbidding a particular speech, but allowing complete free speech on social media may also have negative impacts, such as fostering cyber bullying or hate speech. Speech is not black or white, bad speech on one side and good speech on the other side.

Are Facebook posts protected by the First Amendment? ›

Florida passed a law to stop big tech “censorship.” But the law itself tramples First Amendment rights.

Is deleting comments a violation of freedom of speech? ›

In particular, when public officials use social media as government actors, the First Amendment prohibits them from censoring differing viewpoints. Blocking users or deleting comments because they express critical opinions offends the Constitution and principles of transparency.

What is the impact of social media? ›

However, multiple studies have found a strong link between heavy social media and an increased risk for depression, anxiety, loneliness, self-harm, and even suicidal thoughts. Social media may promote negative experiences such as: Inadequacy about your life or appearance.

What impact does social media have on privacy? ›

However, as social media has grown over the years, so has the risk of data breaches. As more and more information gets placed online, there is an increased danger of hackers, companies, and malicious interlopers mining your data in ways that undermine personal privacy. And in some cases, your data is outright stolen.

Which specific rights are related to the application of media freedom and provide a reason why? ›

Universal Declaration of Human Rights

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

What are benefits of social media? ›

Social networking services can provide an accessible and powerful toolkit for highlighting and acting on issues and causes that affect and interest young people. Social networking services can be used for organising activities, events, or groups to showcase issues and opinions and make a wider audience aware of them.

Should there be a limit to media freedom for group discussion? ›

CONCLUSION: No, there should be no limits in media freedom because during this times, freedom of speech helps develop personal and life skills for a person. Such people can easily suggest their point can convince people very easily and take good decisions in life.

What is free speech in media? ›

Free speech means you have the freedom to express yourself in any way that does not take away the rights of other people. You can (and should) feel free to criticize the work your elected officials are doing.

Can the government access your social media? ›

Yes. The FBI and DHS both hire private companies to conduct social media monitoring on their behalf. One firm was awarded a contract with the FBI in 2020 to scour social media and proactively identify “national security and public safety-related events” that had yet to be reported to law enforcement.

Why does the government use social media? ›

Government officials routinely use social media to communicate policy, advocate positions, introduce new legislation, and various other functions.

Why is the First Amendment Important? ›

It protects the fundamental rights of conscience—the freedom to believe and express different ideas—in a variety of ways. Under the First Amendment, Americans have both the right to exercise their religion as well as to be free from government coercion to support religion.

Can government social media pages delete comments? ›

While private individuals and the platform itself can censor you, government actors cannot generally censor you based on the content of your communication. If the account page is determined to be official, then they should not exclude anyone for having differing viewpoints.

Can police ban you from social media? ›

Short answer: No. Public officials can block comments that are not protected by the First Amendment, including comments that make a true and immediate threat to another person, incite others to imminently violate the law, or contain obscene language as defined by the U.S. Supreme Court.

Can government agencies delete social media posts? ›

They are not allowed to delete or hide those posts, they are not allowed to block someone from their page, they are not allowed to delete public comments (except under some extremely specific circumstances)—doing any of those things is a violation of the public records laws of California.

Videos

1. Should Hate Speech Be Censored? [POLICYbrief]
(The Federalist Society)
2. 2022 Policy Summit: Common Carriage, Social Media, Broadband & the First Amendment
(TechFreedom)
3. Truth Lies and Social Media - A Conversation on the First Amendment in the Modern Age
(Ohio State Office of Academic Affairs)
4. Rage & Reason: Democracy Under the Tyranny of Social Media (Day 1)
(Hannah Arendt Center for Politics and Humanities at Bard College)
5. Can Tech Companies Protect Free Speech in the Information Age?
(The Atlantic)
6. Why Elon Musk Couldn't Save Free Speech
(Tom Nicholas)

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