The First Amendment is 45 words. 45 powerful words. But do you know what the First Amendment does and does not protect in the realm of online content, especially on social media? It might not protect what you think it does.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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."
Misinformation on First Amendment rights is spreading on social media like wildfire. You may have noticed an uptick in Facebook posts and tweets about social media websites restricting the free speech rights of Alex Jones', a radio host and extreme conspiracy theorist. So far Jones’ and/or his Infowars page has been suspended or restricted from full use of Facebook, iTunes, Spotify, Youtube, and Vimeo, including others. These companies all state a violation of use of terms or rules as their reason for parting ways with Jones. This week, Twitter restricted the Infowars for seven days after finding “a video the conspiracy site shared had violated its terms of service.”
The growing list of social media platforms, which have suspended Jones’, ignited a social media debate about who can be punished or silenced for their speech. This represents one of the biggest misconceptions about the First Amendment. Simply put - the First Amendment protects you from government actors. Specifically, the First Amendment provides protections from the government punishing you for or censoring your speech. In the case of social media agencies suspending Jones, or anyone else for that matter, it does not apply.
However, social media platforms, where the majority of people get their news, should not be aggressively censoring speech. Just because something isn't unconstitutional doesn't make it just. And suspending users for flagrant, repeated violations of user rules one day, could spiral into broader censorship the next. From a hyper practical standpoint, we know that successfully filtering out only "bad" speech would be nearly impossible. This strategy would backfire. Who determines what qualifies as “bad” speech? Should we really rely on private corporations to neutrally determine what “bad speech” is? Eventually, they would get it wrong. It would not be long before valid speech and marginalized voices began to be silenced. For example, even the ACLU's own post about censorship of a public statue was taken down by Facebook.
While not bound by the First Amendment, given social media's growing role as an information gatekeeper, we should call on these entities to uphold the principles and values of free speech. Remember, just because you can do something, doesn’t mean you should.