Are the First Amendment and Social Media Colliding ?

first amendment and social media colliding
first amendment and social media colliding
Image courtesy of CBS News

I’ve been reading and thinking a lot about freedom of speech both in-person and online, specifically in social media. Are the first amendment and social media colliding? Or is there another way of looking at the first amendment, the right to freedom of speech.

Protests to end the lockdown caused by Covid-19 argue that our freedom of assembly, as well as our freedom of speech in the form of protests, are basic rights granted by the first amendment in the Bill of Rights. Yet, we impose limits on both forms of speech. For instance, you can’t yell fire in a crowded building because the crowd might injure people in their haste to evacuate. You also can’t protest without a permit in most areas to ensure the protest doesn’t interfere with the rights of others to go about their business.

A caveat in discussing whether the first amendment and social media colliding represent a danger to our rights. I’m not an attorney. I’m a marketer. So, any reference to the Constitution or the Bill of Rights represents my own take on the matter and is not informed by legal training beyond reading opinions of legal scholars.

Are there limits to freedom of speech?

Good question without a clear answer. As I mentioned earlier.

The US Courts published exceptions to freedom of speech that includes the following limitations:

Incite actions that would harm others

Hence, your freedom of speech ends when it interferes with others. Hence why shouting fire isn’t protected speech in a crowded room. Or why protests to open the economy might not be protected speech when you consider the potential danger they impose on innocent others if they contract the virus. Their infection means healthcare workers and first responders must expose themselves to the virus to provide treatment and others the infected individual meets are potentially exposed to the virus.

In social media, attacks on innocent others about. Something about the anonymity of the digital world seems to spawn the spread of vicious, often unsubstantiated rumors that can destroy the person’s life. Multiple suicides resulted from such attacks.

On platforms such as Facebook and Twitter, misinformation spreads like a plague. Some misinformation, such as anti-vax messages, cause damage by encouraging others to avoid necessary vaccinations. We could spend all day discussing how this misinformation arose, but that’s beyond the scope of this post. Instead, let’s look at how the 2 platforms dealt with misinformation.

Facebook, citing free speech, allows much misinformation to spread unimpeded. from deep fakes like Nancy Pelosi’s video slowed down to make her appear drunk or Covid-19 hoaxes and fake cures. Of course, they have much to gain from this stance since messages often spread using paid advertising. Facebook, to its credit, had instituted policies and polices them, regarding malicious posts. However, they still allow too much misinformation on their platform and hide warnings in obscure parts of Facebook [source].

Twitter, on the other hand, instituted an approach that more aggressively removes misinformation from their platform [source].

Government versus corporation

The first amendment applies only to government efforts to control speech, while companies may restrict speech in many cases, with a few exceptions. For instance, speech that’s biased or discriminatory isn’t protected. Nor are efforts by organizations to stop the formation of organized labor legal. But organizations have wide latitude to control speech under the law [source].

Hence, Facebook, Twitter, and any other social platform, as private companies, are free to establish and enforce whatever speech policies they want. Under the law.

It’s a different story in the minds of consumers when it comes to exerting control over speech. And, that’s the argument Facebook uses for allowing misinformation to spread on its platform. They argue that consumers would be discouraged from using the platform if they felt the company was heavy-handed in controlling the freedom of speech.

And, Facebook might be right. Recently, efforts Facebook says it instituted to control the spread of misinformation about the Coronavirus caught a bunch of posts having nothing to do with the virus. I’ve had quite a number of my posts banned for breaching community standards (hate speech, etc, including Covid-19 misinformation) and I never post anything objectionable. I’ve never had a post removed before for violating community standards. Facebook defends its moves, blaming the deletions on rouge software designed to detect community standards violations once it sent its humans home to avoid infection and says they are working to fix the problem [source].

Here are some of my questions regarding the first amendment and social media colliding:

  • To what extent can your employer control what you say online?
  • We know recruiters look at applicants’ social profiles to inform hiring decisions, but is this legal?
  • What about the internet backbone. How much can ISPs and other backbone organizations control your speech?
  • How does net neutrality affect issues of first amendment rights?
  • And what about social platform owners, like Facebook.  What rights do they have to control what happens on their platforms?

After reading a little, I became even more concerned about these issues.

  1. An overview of the legal precedents for the protection of free speech in similar contexts. For instance, one article I read mentions mail is protected but email is not. Are there state laws that might offer some protection for online speech?
  2. Potential areas of conflict between freedom of speech and organizational protections.
    1. Property rights ie. Intellectual property and trade secrets (this is pretty clear cut)
    2. Access through corporate accounts or on corporate equipment to online services like Facebook and Twitter (again, pretty clear cut)
    3. Limitations of speech in public forums or private social media platforms like Facebook (very muddy)
    4. The ability of social media platforms to censor without due process or recourse (very muddy)
      1. if a platform shuts you down, might this also be a violation of antitrust legislation if you’re a business (muddy)
      2. as more social media providers get more involved in the commercialization of their sites, does this create a conflict between their handling of freedom of speech among “free” users and “paid” users that further muddy the waters regarding 1st amendment and anti-trust
    5. What happens if the organization is a government entity – such as a public university — a government contractor, or receives government funding – ie. NPR — does this change their ability to curtail freedom of speech?
    6. Can organizations sue for libel if customers complain about them online — where are the limits
  3. The likely consequences of continued restriction of free speech on the internet, specifically from a marketing perspective
    1. Customers withhold feedback for fear of censure
    2. Reduced employee empowerment to handle complaints, etc.
    3. A decreased likelihood of detecting organizational problems or opportunities, when customers’ complaints are removed
    4. Declining employee satisfaction and its consequences if employees feel restricted in what they’re allowed to say in public forums.

I don’t have answers to these questions so I hope you didn’t read this post hoping for a solution. But, merely asking the questions increases awareness and may lead to solutions.

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