The American Scholar

Stress Test for Free Speech

THE PUBLIC SPHERE is the center of free speech in American democracy. Intangible yet indispensable, it’s the forum where speech, building on other speech, sometimes even by assailing it, demonstrates the rewards of open debate, which the First Amendment safeguards as the foundation of public opinion and the basis for self-government. The amendment has always functioned primarily to curb the power of government. It protects individuals against government infringement of elementary rights, such as the right to petition and the freedoms of religion, assembly, and the press, as well as speech.

In the digital age, however, the public sphere is increasingly located on the platforms of social media companies like Facebook and Twitter. Social media, the Supreme Court observed last year, are “the modern public square.” That development puts the First Amendment at an uncertain step removed from protecting the public sphere.

In shielding speech, the amendment above all restricts government from censoring ideas and criticisms it dislikes by banning publications or punishing speakers. Facebook and other social media platforms are private companies, so what they distribute is not bound, or even covered, by the First Amendment, unless that distribution is used in a way that turns it into an extension of government.

Under the First Amendment, the content that users of social media produce is generally protected from the government, but the amendment doesn’t protect that

content from the platforms themselves. To the consternation of many users, social media companies can moderate or censor content with impunity from sanction under the amendment, as several companies did in August to curtail content from right-wing conspiracy theorist Alex Jones and Infowars.

How is it possible that the First Amendment applies to the precursors of social media—television, radio, and print—yet not to Facebook and its rivals? Because of the specific provision of the amendment to guarantee press freedom, it both protects and holds accountable those traditional media when they publish or broadcast journalism. Social media platforms aren’t publishers in the way that journalism outlets are, although they make editorial decisions (for instance, about the types of content they give priority to) that are protected by the First Amendment.

The public square of social media is similar to the public sphere envisioned by American free-speech law, yet the differences are profound. Whereas, for instance, “First Amendment law protects speech about public figures more than speech about private individuals,” as legal scholars Margot E. Kaminski and Kate Klonick point out, “Facebook does the opposite.” The Constitution protects speech about public figures to serve democratic self-governance. Facebook protects speech about private individuals to maintain a safe environment for users and to preserve its business. Although the quest for profit often shapes these private rules more than any commitment to free expression, these rules increasingly govern the public sphere.

At its best, Facebook amplifies free expression and contributes to a dynamic democratic culture. But the public square is quickly engulfing the public sphere, with Face-book and other social media unintentionally yet increasingly incinerating the culture on which our form of government depends.

When the United States embraced the concept of Internet freedom a generation ago, it was filled with optimism about the digital future. Congress set the stage for social media companies to try their luck in the marketplace by focusing on sharing information and creating connections and communities, rather than on communicating information they produced. Thanks to Section 230 of the Communications Decency Act of 1996, social media companies are, with some exceptions, immune from legal liability for the speech of their users. The section says, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This provision has been the most important reason why social media have not been held accountable for problematic content.

“Thanks to Section

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