{"id":12379,"date":"2019-05-13T08:30:00","date_gmt":"2019-05-13T13:30:00","guid":{"rendered":"http:\/\/sites.law.duq.edu\/juris\/?p=12379"},"modified":"2019-12-02T07:53:53","modified_gmt":"2019-12-02T12:53:53","slug":"the-terms-and-conditions-of-free-speech-in-the-modern-day-public-square","status":"publish","type":"post","link":"https:\/\/sites.law.duq.edu\/juris\/2019\/05\/13\/the-terms-and-conditions-of-free-speech-in-the-modern-day-public-square\/","title":{"rendered":"The Terms and Conditions of Free Speech in the Modern-Day Public Square"},"content":{"rendered":"

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Photo Credit: Gerd Altmann on Pixabay.com<\/em><\/figcaption><\/figure>\n

By Kurt Valentine, Web Editor<\/strong><\/p>\n

Social media has rapidly asserted itself as the modern-day public square. In 2005, one year after Facebook\u2019s launch, 10% of internet-using U.S. adults used at least one social media site.[1]<\/sup><\/a> Ten years later, that number increased to almost 80%.[2]<\/sup><\/a> Facebook, which is the most popular social network worldwide, boasts 210 million users in the U.S.[3]<\/sup><\/a> and 2.3 billion users worldwide.[4]<\/sup><\/a> It \u201callow[s] a person with an Internet connection to become a town crier with a voice that resonates farther than it could from any soapbox.\u201d[5]<\/sup><\/a><\/p>\n

The Supreme Court of the United States has even opined on the importance of social media in today\u2019s society. In a 2013 opinion, Justice Kennedy recognized that, \u201cWhile 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\u2014the \u2018vast democratic forums of the Internet\u2019 in general, and social media in particular.\u201d[6]<\/sup><\/a><\/p>\n

Despite the Court\u2019s emphasis on the special role social media plays in an American\u2019s right to free speech, social media companies are not constrained by the First Amendment. \u201c[T]he First Amendment governs only governmental restrictions on speech.\u201d[7]<\/sup><\/a> As private entities, social media companies are free to restrict speech and users on their websites. In fact, the companies have their own First Amendment rights.[8]<\/sup><\/a> They are also protected by Section 230 of the Communications Decency Act of 1996, which shields social media companies from liability for filtering decisions and content posted by third-party users.[9]<\/sup><\/a><\/p>\n

In 2018, Facebook, Spotify, Apple, YouTube, and Twitter exercised their First Amendment and Section 230 rights when they took down material posted by conspiracy theorist Alex Jones and removed his Infowars channel.[10]<\/sup><\/a> [11]<\/sup><\/a> In response, First Amendment scholar Jameel Jaffer said, \u201cWe should have a discussion about that power and whether Facebook should be able to decide who gets to speak.\u201d[12]<\/sup><\/a> Jaffer further stated, \u201cI think free speech advocates start to get nervous about Facebook excluding people from the platform, especially when there\u2019s an argument that they\u2019re excluding people on the basis of viewpoint. You can think whatever you want to about Alex Jones, but I worry not about Alex Jones, but about the next person or the next year. Who is it that Facebook is going to be excluding next year?\u201d[13]<\/sup><\/a><\/p>\n

Throughout Facebook\u2019s short history, it has struggled to determine what, or who, should be excluded from the site. In 2013, Facebook removed images posted immediately after the Boston Marathon bombing because depictions of severed limbs violated their policy on graphic violence.[14]<\/sup><\/a> The newsworthiness of the event led Facebook to restore the photos.[15]<\/sup><\/a> Shortly thereafter, Facebook declined to remove violent rape jokes because users were permitted to post toxic speech that didn\u2019t seem likely to provoke physical harm.[16]<\/sup><\/a> After several companies pulled their ads, Facebook did an about-face.[17]<\/sup><\/a><\/p>\n

Facebook has had the most difficulty setting its hate speech policy. It cites the difficulty in defining the boundaries of hate speech as their primary challenge in stopping hate speech.[18]<\/sup><\/a> This challenge is due, in part, to the significant variation of laws against hate speech. In the United States, \u201ceven the most vile kinds of speech are legally protected under the U.S. Constitution.\u201d[19]<\/sup><\/a> In a unanimous 2017 decision, Justice Samuel Alito wrote, \u201cSpeech 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 \u2018the thought that we hate.\u2019\u201d[20]<\/sup><\/a><\/p>\n

On the other hand, most European Union counties have hate-speech laws, but they are not uniform. For example, \u201c\u2018Muslims are criminals\u2019 is clearly illegal in Belgium and France, likely legal in Denmark and Italy, and likely illegal in England and Germany (and banned by Facebook).\u201d[21]<\/sup><\/a> In fact, the German Parliament recently passed the Network Enforcement Act, commonly known as NetzDG, which specifically targets hate speech on social media sites. NetzDG requires social media companies with more than 2 million registered German users \u201cto promptly remove \u2018illegal content,\u2019 . . . ranging widely from insult of public office to actual threats of violence.\u201d[22]<\/sup><\/a> If the companies fail to timely remove the content, they face fines up to \u20ac50 million.[23]<\/sup><\/a><\/p>\n

Facebook acknowledges that \u201cit\u2019s clear [Facebook is] not perfect when it comes to enforcing [its] policy. Often there are close calls\u2014and too often [it] get[s] it wrong.\u201d[24]<\/sup><\/a> In 2017, a number of L.G.B.T.Q. individuals were using the term \u201cdyke\u201d on Facebook.[25]<\/sup><\/a> The posts were removed because the term was deemed a slur.[26]<\/sup><\/a><\/p>\n

Again, in 2017, shortly after the #MeToo movement began, female comedian Marcia Belsky was banned from Facebook for 30 days for commenting \u201cMen are scum\u201d on a friend\u2019s post.[27]<\/sup><\/a> A group of female comics, who were getting banned for similar infractions, protested Facebook\u2019s policy by spamming the platform with dozens of \u201cmen are scum\u201d posts.[28]<\/sup><\/a> Facebook removed the posts and Belsky was banned from her account again.[29]<\/sup><\/a><\/p>\n

The content team holds meetings every two weeks \u201cto debate what you can and cannot post on Facebook.\u201d[30]<\/sup><\/a> At a late-2017 content team meeting, Mary deBree, who worked in Obama\u2019s State Department, introduced the \u201cMen are scum\u201d issue.[31]<\/sup><\/a> She said, \u201cWe don\u2019t want to silence people when they\u2019re trying to raise awareness around\u2014for example\u2014sexual assault. However, um, the tension in this is that, if we allow more attacks on the basis of gender, this may also lead to more misogynistic content on the platform.\u201d[32]<\/sup><\/a> Therein lies the problem with Facebook\u2019s hate speech policies. \u201cIf you remove dehumanizing attacks against gender, you may block speech designed to draw attention to a social movement like #MeToo.\u201d[33]<\/sup><\/a><\/p>\n

Under its current hate speech policy, Facebook defines hate speech as \u201canything that directly attacks people based on what are known as their \u2018protected characteristics\u2019\u2014race, ethnicity, national origin, religious affiliation, sexual orientation, sex, gender, gender identity, or serious disability or disease.\u201d[34]<\/sup><\/a> An \u201cattack\u201d is further defined as \u201cviolent or dehumanizing speech, statements of inferiority, or calls for exclusion or segregation.\u201d[35]<\/sup><\/a> The current policy has exceptions when \u201cwords or terms are used self-referentially or in an empowering way\u201d and they also permit \u201chumor and social commentary related to these topics\u201d[36]<\/sup><\/a><\/p>\n

Facebook\u2019s policies simply reflect the realities of the \u201cprivatization of the public square.\u201d Monika Bickert, who is in charge of setting Facebook\u2019s content policies, shares the same concerns as many of the people criticizing the policies.[37]<\/sup><\/a> Just like many free speech advocates, Bickert, a former federal prosecutor, is fearful that fundamental free speech principles are eroding.<\/p>\n

\u201cIt\u2019s scary. When they talk to people on U.S. college campuses and ask how important freedom of speech is to you, something like 60 percent say it\u2019s not important at all. The outrage about Facebook tends to push in the direction of taking down more speech. Fewer groups are willing to stand up for unpopular speech.\u201d[38]<\/sup><\/a><\/p>\n

Thus, social media companies\u2019 restraints on First Amendment protected speech, highlights the current status of speech across the globe: more people are willing to accept speech subject to terms and conditions.<\/p>\n

 <\/p>\n

 <\/p>\n

Sources<\/strong><\/p>\n

\n

[1]<\/a> Andrew Perrin, Social Media Usage: 2005-2015<\/em>, Pew Research Center (Oct. 8, 2015), https:\/\/www.pewresearch.org\/wp-content\/uploads\/sites\/9\/2015\/10\/PI_2015-10-08_Social-Networking-Usage-2005-2015_FINAL.pdf.<\/p>\n

[2]<\/a> Id.<\/em><\/p>\n

[3]<\/a> Countries With the Most Facebook Users as of January 2019<\/em>, Statista (Jan., 2019), https:\/\/www.statista.com\/statistics\/268136\/top-15-countries-based-on-number-of-facebook-users\/.<\/p>\n

[4]<\/a> Facebook: number of monthly active users worldwide 2008-2018<\/em>, Statista (Jan. 2019), https:\/\/www.statista.com\/statistics\/264810\/number-of-monthly-active-facebook-users-worldwide\/.<\/p>\n

[5]<\/a> Packingham v. North Carolina<\/em>, 137 S. Ct. 1730, 1737 (2017).<\/p>\n

[6]<\/a> Id.<\/em> at 1735 (internal citation omitted).<\/p>\n

[7]<\/a> Nyabwa v. Facebook<\/em>, 2018 U.S. Dist. LEXIS 13981, Civil Action No.2:17-CV-24, *2 (S.D. Tex. Jan. 26, 2018).<\/p>\n

[8]<\/a> Eric Johnson, Should the First Amendment apply to Facebook? It\u2019s complicated<\/em>, Recode (Nov. 19, 2018), https:\/\/www.recode.net\/2018\/11\/19\/18103081\/first-amendment-facebook-jameel-jaffer-freedom-speech-alex-jones-decode-podcast-kara-swisher.<\/p>\n

[9]<\/a> Bradley Reeves, Section 230 and Keeping the Trolls at Bay: Twitter Obtains a Significant Legal Victory on Content Control<\/em>, Pillsbury\u2019s Internet & Social Media Law Blog (Aug. 31, 2018), https:\/\/www.jdsupra.com\/legalnews\/section-230-and-keeping-the-trolls-at-16696\/.<\/p>\n

[10]<\/a> Alan Feuer, Free Speech Scholars to Alex Jones: You\u2019re Not Protected<\/em>, The New York Times (Aug. 7, 2018), https:\/\/www.nytimes.com\/2018\/08\/07\/business\/media\/alex-jones-free-speech-not-protected.html.<\/p>\n

[11]<\/a> Barbara Ortutay and Ryan Nakashima, Twitter\u2019s ban of Alex Jones Raises Questions on Consistency<\/em>, Associated Press (Sept. 7, 2018), https:\/\/www.apnews.com\/619e7dec1c4b4b489db1449887cce331.<\/p>\n

[12]<\/a> Johnson, supra<\/em> note 8.<\/p>\n

[13]<\/a> Id.<\/em><\/p>\n

[14]<\/a> Simon Van Zuylen-Wood, \u201cMen are Scum\u201d: Inside Facebook\u2019s War on Hate Speech<\/em>, Vanity Fair (Mar., 2019), https:\/\/www.vanityfair.com\/news\/2019\/02\/men-are-scum-inside-facebook-war-on-hate-speech<\/a>.<\/p>\n

[15]<\/a> Id.<\/em><\/p>\n

[16]<\/a> Id.<\/em><\/p>\n

[17]<\/a> Id.<\/em><\/p>\n

[18]<\/a> Richard Allan, Hard Questions: Who Should Decide What is Hate Speech in an Online Global Community?<\/em>, Facebook Newsroom (June 27, 2017), https:\/\/newsroom.fb.com\/news\/2017\/06\/hard-questions-hate-speech\/<\/a>.<\/p>\n

[19]<\/a> Id.<\/em><\/p>\n

[20]<\/a> Matal v. Tam<\/em>, 137 S. Ct. 1744, 1764 (2017) (citing United States v. Schwimmer<\/em>, 49 S. Ct. 448, 451 (1929) (Holmes, J., dissenting)).<\/p>\n

[21]<\/a> Simon Van Zuylen-Wood, supra<\/em> note 13.<\/p>\n

[22]<\/a> Germany: Flawed Social Media Law<\/em>, Human Rights Watch (Feb. 14, 2018), https:\/\/www.hrw.org\/news\/2018\/02\/14\/germany-flawed-social-media-law.<\/p>\n

[23]<\/a> Id. <\/em><\/p>\n

[24]<\/a> Richard Allan, supra<\/em> note 17.<\/p>\n

[25]<\/a> Simon Van Zuylen-Wood, supra<\/em> note 13.<\/p>\n

[26]<\/a> Id.<\/em><\/p>\n

[27]<\/a> Id.<\/em><\/p>\n

[28]<\/a> Id.<\/em><\/p>\n

[29]<\/a> Id.<\/em><\/p>\n

[30]<\/a> Id.<\/em><\/p>\n

[31]<\/a> Id.<\/em><\/p>\n

[32]<\/a> Id.<\/em><\/p>\n

[33]<\/a> Id.<\/em><\/p>\n

[34]<\/a> Allan, supra<\/em> note 17.<\/p>\n

[35]<\/a> Community Standards<\/em>: Objectionable Content<\/em>, Facebook, https:\/\/www.facebook.com\/communitystandards\/objectionable_content<\/a><\/u>.<\/p>\n

[36]<\/a> Id.<\/em><\/p>\n

[37]<\/a> Van Zuylen-Wood, supra<\/em> note 13.<\/p>\n

[38]<\/a> Id.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

By Kurt Valentine, Web Editor Social media has rapidly asserted itself as the modern-day public square. In 2005, one year after Facebook\u2019s launch, 10% of internet-using U.S. adults used at least one social media site.[1] Ten years later, that number increased to almost 80%.[2] Facebook, which is the most popular [\u2026] <\/p>\n

<\/div>\n

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