How Social Media Platforms Are Narrowing the First Amendment

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The First Amendment forms the bedrock of American democracy. Its protections against government censorship make possible the shared societal debates that have ushered many once-heretical ideas into the mainstream. Yet, as our national debates increasingly occur within the private walls of social media platforms, those companies, exempt from First Amendment restraints, have embraced their newfound role of national censor. As part of this process, fact-checkers are expanding their reach to questions for which there are no clear answers, adding new categories of assessment such as “missing context” to their rulings.

These shifting dynamics prompt a fundamental question: What does it mean for democracy when the First Amendment is continually narrowed by private companies stepping in to act as the censors that the government can’t be?

Throughout American history, the First Amendment has enshrined the right of all Americans to hold and share beliefs without fear of government repression. With few exceptions, the government cannot forcibly deter its citizens from expressing views with which it disagrees. Yet it is important to remember that these protections do not extend to the private entities within whose walled gardens we often hold our societal debates. Twitter can legally label the president’s tweets as “false” while Facebook can legally set its own standards regarding when threats of “state use of force” can be made. The platforms can legally ban users, including heads of state, threaten to bar elected officials for statements they dislike, designate people as “dangerous individuals” and restrict circulation of content its fact-checking partners deem to be true but “missing context.” How is it that a private company can now designate an American citizen as a “dangerous individual” whose right to speech in the digital world can be revoked?

In extending their reach to elected officials over the past year, social platforms are increasingly seeking to wield influence over American policy. Twitter allegedly threatened to ban Sen. Tom Cotton from its platform if he didn’t delete a tweet encouraging law enforcement to crack down on violent looting, while Facebook noted it could establish official guidelines regarding when the U.S. government would be permitted to use force against its citizenry and bar official government threats of force in violation of that policy.

Threatening politicians with bans for unpopular speech and actively flagging and even deleting statements the platforms dislike allows social media companies to encourage self-censorship in which elected officials, fearful of being blocked from a major connection to voters, will restrict what they say.

At the same time, the courts have repeatedly ruled that President Trump’s Twitter account constitutes an official U.S. government account and thus the president is prohibited from blocking users with whom he disagrees. Yet, if the president’s Twitter account is an official publication of the government in the eyes of the judiciary, why is Twitter permitted to censor it?

The companies have even begun to wade into the legal system, curtailing posts arguing that the actions of Kyle Rittenhouse — charged with fatally shooting two people during civil unrest in Kenosha, Wis. — were in self-defense. Twitter went a step further to suspend the account of Rittenhouse’s lawyer for “glorifying violence” after the attorney publicly touted his client’s innocence and announced a fundraiser to help cover his legal costs. Only after a public outcry did the company reinstate the account, offering only the terse explanation that “this account was incorrectly actioned.” If private companies can now render their own judgment on court cases and bar arguments of guilt or innocence with which they disagree, what impact will that have on jury pools of the future?

The fact-checking landscape is also becoming more complex. Rather than stick to simple “true” and “false” ratings, fact-checking on Facebook now includes labels like “missing context,” which does not dispute a claim’s veracity, but rather argues that, like all arguments, there is an opposing view.

A Facebook spokesperson noted that this “missing context” rating was added just last month at the recommendation of its fact-checking partners. Interestingly, the rating was recently cited by the platform in its removal of an ad. Regarding the ad’s criticism of Michigan Sen. Gary Peters, the fact-checker noted, “That’s a prediction we can’t fact-check.”

While Facebook touts the independence of its fact-checking partners, the business magazine Fast Company noted recently that the platform “may intervene if it thinks that a piece of content was mistakenly rated, by asking fact-checkers to adjust their ratings, a spokesperson acknowledged.” Asked how often this occurs, the company did not reply, but did confirm that it periodically intervenes in fact-checker ratings when it believes they are not in keeping with its definitions.

At the same time, social media platforms are facing increasing pressure to define ever more of our societal debate as prohibited speech. As but one example, the NAACP’s #StopHate campaign earlier this year grouped “climate denialism” into the same category as “white supremacy, militia, antisemitism, violent conspiracies, Holocaust denialism.”

Such redefining of the public debate as “hate speech” mirrors the wording used by China earlier this year as it strengthened its grip over Hong Kong. After a number of teachers were reprimanded for teaching topics relating to human rights and democracy, a spokesperson for Hong Kong’s Education Bureau offered that the teachers were not punished for “a particular political view” but rather for “express[ing] their views in hate speech or through violence.”

As private companies increasingly sweep aside First Amendment guarantees, they have been granted incredible powers not just to arbitrate what constitute acceptable ideas but to ultimately decide what constitutes “truth.” Where might these trends take us? For the answer, ask your friendly Amazon Alexa device, “Is Apple/Facebook/Google/Twitter/Walmart a monopoly?” In each case it will cite search results from the web to argue that each is a monopoly. On the other hand, ask whether its manufacturer, Amazon, is a monopoly and without hesitation Alexa repeats the built-in answer: “No, Amazon.com is not a monopoly.”

RealClear Media Fellow Kalev Leetaru is a senior fellow at the George Washington University Center for Cyber & Homeland Security. His past roles include fellow in residence at Georgetown University’s Edmund A. Walsh School of Foreign Service and member of the World Economic Forum’s Global Agenda Council on the Future of Government.





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