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While the famous First Amendment right appears simple on paper — “Congress shall make no law … abridging the freedom of speech” — its interpretation is something Americans have been arguing over ever since the rule was ratified. It’s a complex, nuanced topic, so it’s not surprising that many people get confused about what “free speech” actually protects, especially now that so many conversations are happening on social media.
“Most people don’t think they’re confused. They’re pretty sure they know what free speech is, and they’re often wrong,” said Ben Wizner, the director of the ACLU’s Speech, Privacy, and Technology project, in a recent “Ask the Expert” podcast discussing freedom of speech.
So naturally, the free speech debate flares up regularly. Tesla
TSLA,
founder Elon Musk — a self-described “free speech absolutist” — has made upholding “free speech” central to his takeover of Twitter
TWTR,
“Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated,” he tweeted.
And reactions to the Twitter board accepting Musk’s bid have ranged from users celebrating what they consider the “return” of free speech to the platform, to some threatening to delete Twitter if Musk relaxes community standards.
Many are echoing Musk’s “public square” or “town square” argument to demand freedom of speech on social media; that when speech takes place in a public forum, that speech can qualify for protection of speech under the First Amendment. And many of them have accused Twitter, Meta’s
FB,
Facebook and Instagram, as well as Alphabet’s
GOOGL,
YouTube, of stifling free speech by cracking down on accounts that incite violence or spread misinformation — actions which have included suspending former President Donald Trump’s personal accounts.
But the Supreme Court has ruled that social media platforms are not considered public forums — they’re companies hosting conversations. And companies are not responsible for protecting freedom of speech; the government is, legal experts including Stanford law professor Nate Persily explain.
Let’s review.
What does freedom of speech actually mean?
The First Amendment text specifies that Congress — which the Supreme Court ruled also extends to the states and local governments — may not restrict freedom of speech. Speech that takes place in a traditional or designated public forum (like a sidewalk or park on government property) is protected, with some exceptions. Freedom of speech includes the right to use certain offensive words and phrases to convey political messages; for students to wear black armbands to school to protest a war; or to engage in symbolic speech by burning the American flag, to name a few examples.
But there is actually no constitutional right for a person to express themselves however they want in a private facility, such as within a store … or on a company-run social media platform.
The First Amendment is protecting speech from government censorship — not your right to say whatever you want on Twitter or Instagram if it violates the codes of conduct.
“At the most basic level, the First Amendment protects our speech from interference and reprisal from the government. It doesn’t protect our speech from interference, reprisal, censorship from Twitter or from Facebook, or in most cases, from your private employer,” said Wizner on his podcast.
Related: Elon Musk wants ‘free speech’ for Twitter, but that may not work with Europe tech rules
“Private companies not only have the right to decide who can speak on their platforms, but they themselves have the First Amendment right to make decisions about the character of their platforms,” Persily agreed. In fact, if the government tried to ban Facebook or Twitter from being able to decide what content is and isn’t allowed on their sites, then that would be violating those companies’ own First Amendment rights.
“Every community standard at every tech platform would be unconstitutional if it were passed by the government. Banning incitement, hate speech, nudity, obscenity, bullying, self-harm, Holocaust denial — almost all of that speech is going to be considered protected under the First Amendment,” Persily continued. “But the platform decides that they don’t want their ecosystem, which is under their control, to be filled with certain types of content that they think make the product unusable.”
Is Twitter censoring free speech?
No, because Twitter is not a government. Twitter, Facebook and YouTube are also not legally considered town squares.
Many users may consider their go-to social networks as public forums, because they are publicly sharing their opinions online in those spaces. And these sites are often colloquially called digital public squares or digital town squares.
But that’s not what the courts have said. The courts have ruled that social networks are private, and hosting speech by others does not make them public forums.
“The internet is a public square,” Persily explained. “Twitter, Facebook and YouTube are not; they are ways of organizing information online.” So Twitter and YouTube can pull down content that they consider obscene, inciting violence or spreading misinformation. And banning them from moderating that content on their own sites would ban their First Amendment rights.
What are some other limits to freedom of speech?
Freedom of speech does not include the right to incite imminent lawless action; to make or distribute obscene materials (such as child pornography); or to burn draft cards as an anti-war protest, to name a few. Defamation (aka making false statements to damage a person’s reputation) or threatening to commit a crime (such as threatening to kill someone) are also not protected.
What about free speech around the world?
One thing to keep in mind is that Twitter is used by people all over the world, and different countries have different rules governing free speech. So Musk will be confronted with Europe’s Digital Services Act, which will require big tech companies such as Twitter, Google and Facebook parent Meta to police their platforms more strictly, or face billions in fines. And the ACLU’s Wizner noted that in Germany, it is a crime to deny the Holocaust — while in the U.S., that would be considered protected political speech.
“If his approach will be ‘just stop moderating it,’ he will likely find himself in a lot of legal trouble in the EU,” Jan Penfrat, senior policy adviser at digital rights group EDRi, told the Associated Press.
The free speech/open speech debate
Twitter cannot legally be accused of censoring free speech. But Persily noted that discussions around whether Twitter and other social networks should have a more open speech environment, on the other hand, are “perfectly reasonable.”
“If, like many people, including Musk, you’re most afraid of how the platforms will use their power to exclude certain voices that you think should be part of the conversation, well then you are on the side of more speech protection,” he said. ” If you’re highlighting that one of biggest problems with these platforms is how much misinformation, hate speech, child sexual exploitation, etc., is on them, then you want to have different rules than you would have that would be passed by the government.”
The bottom line is that a social media company creating and enforcing content standards on its own platform is not the same as censorship or stifling free speech, he said.
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