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The Privatization of Censorship: Modern Challenges for the First Amendment | Focus

As private social media companies increasingly assert their power to police content, it’s important to trace the development of that power and consider the government’s role.

In the age of social media, freedom of expression has reached new heights and scales of audience previously unimaginable. Little known high-schoolers posting about climate policy can amass followings of thousands on Twitter. Message boards on websites like 8chan, dedicated to updates from QAnon, can similarly garner the attention of even hundreds of thousands. In the wake of the failed insurrection attempt of January 6th, mainstream sites like Twitter and Facebook began to crack down on the dissemination of conspiracy theories like ‘Q’ and banned former President Donald Trump for stoking the violence of that day. On top of that, social media platforms have begun to take action against misinformation regarding COVID and vaccines in order to promote public health.

As a result, there is perhaps no public constitutional debate more popular than the one currently raging over the First Amendment and freedom of speech and expression. America is looking down the barrel at a serious free speech and censorship problem, at the heart of which lies  our  social media services . While this is an issue of paramount importance, neither Republicans nor Democrats nor their respective allies in the media seem to have a handle on what is the real problem. In order to understand what’s going on, we need to take a closer look at the competing claims of each party and censorship precedence here in America and abroad. In short, we are in a sane place, but the current structure of free speech and censorship regulation has us poised for some potentially grave problems.

Most Republicans have largely stuck to a claim that ‘big tech’ is politically biased, censoring right-wing opinions and pundits unfairly. In an op-ed, Mr. Trump claimed that the internet is today’s town square in which anyone should be able to say anything they want and that other actors like the leaders of Iran and China are not held to the same standard that he was. According to Mr. Trump and other Republicans, their First Amendment rights have been violated by these companies which have been, in Mr. Trump’s words, “illegally deputized as the censorship arm of the U.S. government.” In order to uphold freedom of speech, private companies should not have the power to censor.

Democrats, on the other hand, have been generally supportive of the actions taken by Twitter and others, both against Mr. Trump and users spreading misinformation about COVID. According to these arguments, the misinformation and conspiracy theories, surrounding both January 6th and COVID generally, have misled people into believing lies which contributed to the violence at the Capitol and a worsening of the pandemic. Insurrectionists believed whole-cloth lies about voting fraud, and many more have been persuaded similarly that COVID is fake or planned or even that the vaccine developed under Mr. Trump is laced with mind-control microchips from Democrats. In order to uphold public safety, private companies bear the responsibility to censor.

These divergent priorities—safety or freedom—are unsurprisingly characteristic of both parties. As an aside, if you’d like to learn more about why that is unsurprising, listen to our recent Bird’s Eye episode on the subject of small government theories of liberal democracy, found here. Regardless, both points of view have their respective points and flaws.

If private companies really were in cahoots with the Democratic party, Republicans would be right that that would constitute an unconstitutional violation of First Amendment rights. However, there’s no evidence to support this claim. In fact, as President Joe Biden and others have repeatedly stated, the Democratic party is seeking to raise corporate tax rates with tax plans specifically focused on closing loopholes for tech companies. Beyond being unsubstantiated, the claim is on its face very difficult to argue, since such cooperation would be plainly against the interests of these companies. What’s more, conservative news websites routinely get more engagement than any other posts on Facebook.

Instead, these platforms have merely made reasonably-informed decisions which are in the obvious interests of democratic and general public health. The conspiracy theories surrounding a stolen election and a mind-control vaccine are just that—conspiracy theories, mostly originating on anonymous message boards where real people and fraudsters all appear alike.

In the America of the Revolutionary period, of course conspiracy theories and theorists and fraudsters existed, but platforms were smaller and with higher barriers to entry. For a wonderful story of just how difficult the road to becoming a newspaper publisher was back then, Benjamin Franklin’s autobiography is intriguing. Today, however, anyone—be they genuine and well-meaning or manipulative and misleading—can jump onto an effectively global platform  and amass a following. A suspected contributor to ‘Q’ lives in Japan, for example. The marketplace of ideas is in full swing, and unfortunately there are many snake-oil salesmen peddling stories rather than wares.

The fact is, though, that private companies are the de facto arbiters of what’s snake-oil and what isn’t because the government endowed them with that right, and how that was done might be the real problem. As the internet began to bloom, internet pornography became a sticking point in popular discourse, with many groups and individuals pressing Congress to restrict or ban this material from the internet. Putting any deliberation over that issue in particular aside for now, Congress did pass a bill restricting this material with age requirements and other protocols.

That bill, the Communications Decency Act (CDA) of 1996 included one section of great importance to online censorship. In Section 230,  Congress legislated that providers of internet content services could not be held liable for restricting or removing any material it found to be “objectionable, whether or not such material is constitutionally protected.” Contrary to Mr. Trump’s claims that platforms have been deputized to follow the whims of Democrats in what they remove, platforms have actually been given total control to determine what is and is not “objectionable” and subject to restriction.

The First Amendment states that “Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The CDA sidestepped any questions of constitutionality by merely clarifying that private companies were not subject to the same standard as Congress. Congress may not be able to pass a law restricting free expression, but private companies can do however they please.

When the CDA ended up in the courts within a year, the bill was ruled almost entirely unconstitutional. Only Section 230 survived. The question of constitutionality was clearly and effectively settled in 1997, and there’s no indication that this precedent is likely to be overturned.

Further, a good portion of the speech made regarding January 6th may not have been constitutionally protected in the first place. In a 1969 case, the Supreme Court ruled that speech “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” is not protected by the First Amendment at all. This actually overturned older precedent and set a higher standard for what it took for speech to lose protection. And yet, even according to this standard, when it comes to a great deal of the online posting which contributed to January 6th, whether or not private companies were allowed to do what they did would be irrelevant. Even the government would be fully empowered to prosecute such individuals.

However, when it comes to something like COVID vaccines, the waters are murkier. According to this precedent, some of the pandemic misinformation and vaccine skepticism currently circulating on social media are protected by the first amendment.  That’s where things get difficult. Even if you do recognize the reality of COVID or believe in the efficacy and importance of vaccines, it may become difficult to condone recent behavior from social media services.

On the one hand, it is important that people not be misled into believing false realities, if we are to have a functioning democracy or, in this case, a healthy society free of plague which is still killing people and crippling our economy in the long term. On the other hand, this situation shines a light on just how much latitude these private companies have to determine what is and isn’t acceptable speech.

While the barrier to entry to share your voice with many people is lower than ever, there remains effectively only a few stages on which one can perform. While it is possible to create new alternative platforms, as is made undeniably clear by the mere existence and impact of websites like 8chan or Parler, this status quo may be generating deeper divides in American society. It’s not hard to imagine that polarization gets worse when Americans not only get their news from different places but also exclusively socialize via platforms according to those biases.
For now, it is not clear that anything can really be done through legislation. It would take a constitutional amendment or landmark legal precedence to establish any clear guidelines about the illegality of anti-democratic agitation or anything similar, and—though some countries like Germany, Taiwan, and South Korea do this—it’s not even clear that’s a wise path. The First Amendment is a tremendous right which must be preserved for the sake of a healthy society. As it is, though, we’ve put ourselves in a corner which empowers companies to take darker paths in the future, and the alternative solutions don’t seem very promising.


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