Are social media's recent bannings a freedom of expression issue?

[DSeid]

And FWIW here’s an ABA bit that I know will be disagreed with! But it gives some history of interest and a different perspective.

… traditional legal doctrine provides that private actors are not constrained by the Constitution generally. This is called the “state action” doctrine. It purportedly creates a zone of privacy and protects us from excessive governmental interference.

The Court developed the state action doctrine in the Civil Rights Cases of 1883. This case actually consisted of five consolidated cases in which private businesses egregiously excluded African-American plaintiffs from their privately owned facilities opened to the public (such as movie theaters, inns, amusement parks, and trains) on the basis of race. The plaintiffs contended that such exclusions violated the Equal Protection Clause of the Fourteenth Amendment. However, the U.S. Supreme Court responded somewhat cavalierly “[i]t is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment.” ( Civil Rights Cases , 109 U.S. 3, 11 (1883).) The Court said that there were no constitutional remedies available to these plaintiffs and that they would need to rely on the common law state protections. Sadly, there were no such state common law protections either.
Only Justice John Marshall Harlan I, the so-called “Great Dissenter” for his solitary dissent in this case, Plessy v. Ferguson (1896), and other decisions, recognized that his colleagues were allowing the government a free pass to discriminate against persons of a particular race with regard to the use of public facilities. He wrote that the “discrimination practised by corporations and individuals in the exercise of their public or quasi-public functions is a badge of servitude” that Congress could rectify under its powers under the Thirteenth and Fourteenth Amendments. ( Civil Rights Cases , 109 U.S. at 43 (1883) (J. Harlan, dissenting).)

But, in 2018, speech takes place online much more so than it does in traditional public forums, such as public parks and streets. People communicate on social networking sites, such as Facebook and Twitter, more than in any offline venues. The U.S. Supreme Court recognized this reality last year in Packingham v. North Carolina (2017): “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.” ( Packingham v. North Carolina , 137 S.Ct. 1730, 1735 (2017).)

In his opinion for the Court, Justice Anthony Kennedy elaborated that the expansion of social media has contributed to a “revolution of historic proportions.” Id. at 1736. In other words, social media networking sites have become the modern- day equivalent of traditional public forums like public parks and public streets.

This societal development and change in communications capacities require that the antiquated state action doctrine be modified lest the law become ossified. The time has come to recognize that the reach of the First Amendment be expanded.

This is not a novel thesis. Many others have advocated for this approach. Many legal scholars have recognized that when a private actor has control over online communications and online forums, these private actors are analogous to a governmental actor. For example, legal commentator Benjamin F. Jackson cogently explained in a 2014 law review article that “[P]ublic communications by users of social network websites deserve First Amendment protection because they simultaneously invoke three of the interests protected by the First Amendment: freedom of speech, freedom of the press, and freedom of association.” (Benjamin F. Jackson, Censorship and Freedom of Expression in the Age of Facebook , 44 N.M. L. Rev. 121, 134 (2014).)

Decades earlier, the brilliant legal scholar Erwin Chemerinsky argued that the state action doctrine should be revisited and abandoned. He wrote that private censorship can be as harmful as governmental censorship. As applied to freedom of speech, he posited:

Freedom of speech is defended both instrumentally—it helps people make better decisions—and intrinsically—individuals benefit from being able to express their views. The consensus is that the activity of expression is vital and must be protected. Any infringement of freedom of speech, be it by public or private entities, sacrifices these values. In other words, the consensus is not just that the government should not punish expression; rather, it is that speech is valuable and, therefore, any unjustified violation is impermissible. If employers can fire employees and landlords can evict tenants because of their speech, then speech will be chilled and expression lost. Instrumentally, the “marketplace of ideas” is constricted while, intrinsically, individuals are denied the ability to express themselves. Therefore, courts should uphold the social consensus by stopping all impermissible infringements of speech, not just those resulting from state action. (Erwin Chemerinsky, Rethinking State Action , 80 N.W. U. L. Rev. 503, 533–34 (1985).)

Already, some state high courts interpret free expression provisions in state constitutions to provide protection to individuals involving private actors. For example, a few states apply their free expression protections at privately owned shopping malls. The New Jersey Supreme Court has applied the free expression provision of its state constitution to allow individuals to challenge restrictive bylaw provisions of private homeowner associations. The state high court wrote: “In New Jersey, an individual’s affirmative right to speak freely is protected not only from abridgement by government, but also from unreasonably restrictive and oppressive conduct by private entities in certain situations.” ( Mazdabrook Commons Homeowners Association v. Khan , 210 N.J. 482, 493 (2012).)

[k9bfriender]

Yes, that is exactly what I am saying. People who have joined voluntary associations may be restricted in what they say within the confines of that association.

If you come to my house, I can tell you that you may not talk politics in my house.

If you come to my dog care only messageboard, I can tell you that you may not talk about cats on my messageboard.

If you are on this messageboard, you may not talk about scientific racism or 9/11 conspiracies on the SDMB.

If I am employing you, then I can tell you that you may only talk about job related issues, no politics, religion, or even about the superbowl last night while you are at work.

We do not join with the government as a voluntary association, so it should not be allowed, with some exceptions in some very narrow categories, to tell me what I can or cannot say under its jurisdiction.

Twitter is a voluntary association, and so it should be allowed to set its own rules as to community standards and enforcement.

Does that clear up your confusion? (No snark intended, I really am trying to be as clear as I can on this.)

[k9bfriender]

@DSeid

If employers can fire employees and landlords can evict tenants because of their speech, then speech will be chilled and expression lost. Instrumentally, the “marketplace of ideas” is constricted while, intrinsically, individuals are denied the ability to express themselves.

So, my employee can tell me to fuck off and die, and I cannot sanction them for it? I disagree.

[DemonTree]

@k9bfriender

If I am employing you, then I can tell you that you may only talk about job related issues, no politics, religion, or even about the superbowl last night while you are at work.

What about out of work? If you’re employing me, can you tell me that I’m not allowed to put a sign on my house supporting a particular political candidate? Can you order me to join your boycott of X business and fire me if you find out I bought from them? Should you be allowed to fire me for following someone you dispprove of on my personal Twitter account?

[Ruken]

@DemonTree

What about out of work?

Outside of a contract that stipulates otherwise, NLRA, whistleblowing, harassment, discrimination, etc., most employments situations are at-will in the US.

[ISiddiqui]

@DSeid

And FWIW here’s an ABA bit that I know will be disagreed with! But it gives some history of interest and a different perspective.

Though, I would note that Hudson and Chemerinsky’s (who is indeed brilliant, he taught a BarBri course I took when I was studying for the bar) argument would directly stand in the face of of @asahi 's desire to combat disinformation and hate speech. So you would basically end up with Twitter being Parler (maybe it would clamp down on violent insurrection talk slightly better - maybe not?) if Twitter was to be treated akin to the state. And down the line, message board moderation would likely be legally challenged - for example SDMB’s recent decision that misgendering people is out of line.

Seems to me that would make social media unbearable. And the current system appears to be a very good middle ground between everything is permitted and moderation is heavy handed everywhere.

[DSeid]

@k9bfriender

Does that clear up your confusion?

It does clarify my understanding of your position. Thank you.

[DSeid]

@ISiddiqui

And the current system appears to be a very good middle ground between everything is permitted and moderation is heavy handed everywhere.

And that is one of the disagreements: whether this is a very good, or even adequate middle ground.

[k9bfriender]

I can. Whether or not I should is a different matter.

And whether or not I should be allowed to is an entirely different matter altogether.

[k9bfriender]

It is interesting that in this thread, we have some arguing that the govt should regulate the allowed speech on social media, and we have others arguing that the govt should regulate what social media is required to allow.

I’d say that keeping the govt out of it as much as possible is the best middle ground.

[DemonTree]

@k9bfriender

It is interesting that in this thread, we have some arguing that the govt should regulate the allowed speech on social media, and we have others arguing that the govt should regulate what social media is required to allow.

I was thinking the same. @Asahi is worried about social media spreading misinformation and conspiracy theories, I’m worried that measures intended to prevent this will be used to suppress accurate information and stop legitimate debate. With the Dems in power we are much more likely to see the latter, IMO.

@k9bfriender

And whether or not I should be allowed to is an entirely different matter altogether.

Do you think you should be allowed to?

[Chingon]

@DemonTree

@Asahi is worried about social media spreading misinformation and conspiracy theories,

As previously stated many many times, “social media” by itself doesn’t spread misinformation and conspiracy theories. The users of the social media’s platform do. You still have this fundamental misunderstanding of the relationships involved.

[DemonTree]

@Chingon

As previously stated many many times, “social media” by itself doesn’t spread misinformation and conspiracy theories. The users of the social media’s platform do. You still have this fundamental misunderstanding of the relationships involved.

If I say he is worried about social media facilitating the spread of misinformation, will that satisfy your pedantry?

[DSeid]

@k9bfriender

I’d say that keeping the govt out of it as much as possible is the best middle ground.

Which makes a nice snippet but pretty sure that that “as much as possible” does not imply an absolutist position. Is it “possible” for the government to allow any and every expression? Liable, threats, hate speech, so on? Of course it is. Is it possible for the government to do nothing to maintain general public good interests, inclusive of the public good interests of this thread? To be hands off everything? Of course.

[Chingon]

Post A has been made by User J on Social Media Platform X. This post has been flagged by whatever mechanism the platform has in place (it could be some basic AI, by users, by their customers, etc — if this is important we can circle back to this later).

1. Can Social Media Platform X simply take down the post with no/poor justification?

(Here poor justification could range between not completely following their stated TOS to having non-bright line TOS)

From what many have posted they would say no, at least not without suffering some penalty delivered by the government, so let’s take it for granted that this is no longer allowed.

2. What steps must Social Media Platform X follow to remove Post A? Do they need to submit a request to the government agency and get it approved before it can be removed, or can they remove it and then force User J to file an appeal to the government agency?

[Chingon]

Its not pedantry, its very important distinction which you are blurring for rhetorical effect.

[DemonTree]

That was not my intention. I hope you are happy with the rephrasing.

[k9bfriender]

@DemonTree

I’m worried that measures intended to prevent this will be used to suppress accurate information and stop legitimate debate. With the Dems in power we are much more likely to see the latter, IMO.

I have to disagree with this. I don’t really think that anyone in govt should have this power, but it has not been the dems who have been spreading and responding to vast amounts of disinformation, leading up to an insurrection.

@DemonTree

Do you think you should be allowed to?

I think that that is a complex question with an even more complex answer that is well outside the scope of this thread. I will only state here that I think that the less the govt does as pertains to controlling the rights of people and their associations, the better, and that it should require very compelling interests to get it involved.

Let me ask you, if you were an agent of Jobs and Family Services, and you got an unemployment claim that stated that an employee quit because one of their co-workers has a biggotted bumper sticker, would you approve the claim?

@DSeid

Which makes a nice snippet but pretty sure that that “as much as possible” does not imply an absolutist position. Is it “possible” for the government to allow any and every expression?

As I have stated, there are a few categories that are limited in scope where the govt should forbid certain expressions.

@DSeid

Liable, threats, hate speech, so on?

I do not believe in prior restraint for libel or slander, but rather, that those who do so should be penalized under civil penalties for the damages they incur.

Threats, depending on how immediate and viable they are, are already covered, both by the govt and by the positions that I have stated.

Hate speech is hard to define, one person’s observation of the obvious is another’s hate speech. I have no problem with communities of voluntary association defining what they consider to be hate speech and disallowed, but I do find it problematic to leave that to the govt.

[ISiddiqui]

@Chingon

What steps must Social Media Platform X follow to remove Post A? Do they need to submit a request to the government agency and get it approved before it can be removed, or can they remove it and then force User J to file an appeal to the government agency?

My assumption (granted this is not my argument so I may be mistaken) is that X may remove A, but J has the ability to take legal remedies. So as opposed to government agency, more providing them a right to sue.

If I’m incorrect let me know.

[k9bfriender]

I would say that that is similar to saying that I may fire someone, but that employee has the ability to take legal remedies. In that case, they not only have the right to sue, but there are also govt agencies tasked with taking those complaints and legislating on their behalf.

I don’t know if we need the equivalent of labor law protections for tweets.