Should Facebook and Twitter Be Regulated Under the First Amendment?

By Wired · View original ↗

Kyle’s annotated excerpts of the Wired piece on whether the First Amendment reaches private platforms. Captured in Roam under the working title Blocking Free Speech or Hate Speech and filed as a writing project; it is really a read he marked up. The same excerpt was also pasted by accident into How to Network.

Excerpts

• The First Amendment and its clause protecting free speech prohibit only government action restricting it, not private action by those companies. That’s why the companies can choose to filter out hate speech without violating the First Amendment, even though that filter amounts to censorship—suppression of speech. Yet the choice not to impose a wider filter is still a choice, Kramer says: “The platforms cannot escape that their decisions about what to allow through their pipelines define what the public sees and gets—meaning they must accept responsibility for the consequences.”
• A HALLMARK OF American free speech law is that it prohibits the government from censoring or punishing hate speech. In public forums, the law allows hate speech and expressions of hate—verbal attacks on homosexuals near the site of a funeral of a military veteran, burning a cross on the lawn of an African American couple, calls for the overthrow of the US government by a member of the Ku Klux Klan. It’s all protected under the Constitution. When the Supreme Court reaffirmed this view in June, Justice Samuel A. Alito Jr. wrote for a majority of the Court that “speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” (The internal quotation is from the great Justice Oliver Wendell Holmes Jr., the architect of that jurisprudence.)
• Harvard Law School’s Noah Feldman added his voice to the dissenters. “There’s no right to free speech on Twitter,” he asserted. “The only rule is that Twitter Inc. gets to decide who speaks and listens—which is its right under the First Amendment. If Twitter wants to block Trump, it can. If Trump wants to block followers, he can. Trump’s account can’t be a ‘designated public forum,’ as the center claims, because it isn’t public at all. Rather, Trump’s account is a stream of communication that’s wholly owned by Twitter, a private company with First Amendment rights of its own.”
• The institute replied that the “fact that Twitter is a private company doesn’t mean the First Amendment is inapplicable to President Trump’s Twitter account. The key question is whether the president has opened up a forum for expressive activity to the public.” This view is about the account’s function and the president’s use of it, not Twitter’s form as a company. The lawsuit is against the government, not Twitter.
• The Supreme Court indirectly supported that view in late June. It struck down a North Carolina law that made it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” The law, Justice Anthony M. Kennedy wrote for a majority of the Court, violated a “fundamental principle of the First Amendment”—namely “that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” Now, Kennedy wrote, quoting a prior Court opinion, the most important of those places is “cyberspace—the ‘vast democratic forums of the internet’ in general, and social media in particular.”
• SUMMARY: You’re allowed to say hateful things. Private companies are allowed to decide to block you. It’s illegal to block people from being in those spaces because a fundamental of the First Amendment is that people have access to places where they can speak their mind, etc. You have the right to be there, that doesn’t mean you have the right to say whatever you want.

Connections

• Content Moderation - Misinformation Is The New Malware — Kyle’s own essay on the same problem.
• How to Network — where this excerpt was mis-pasted in Roam.