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Say you post something on Instagram or TikTok and they take it down. Is it fair that they took your post down? What about if they did it to your mother? Your teacher? Is it fair if they did it to Ariana Grande? Or even to the president of the United States? This question has long been posed but the controversy was recently amplified after the insurrection at the Capitol because afterward social media companies took down President Trump’s personal posts and accounts from their networks. There were outrage and support, which elevated it to be one of the most pressing issues today.
There are a lot of things to consider when determining if this behavior by social media companies is fair or not. As a middle schooler, I do not have a deep knowledge of these challenging topics so I did some research on Google and spoke to local attorneys. I believe we live in a country where we can have opinions and we should always continue to express them, so I am attempting to provide some background to guide us through this topic.
The word “censorship” is being commonly referenced, so some clarification and definition of this term are necessary first. The definition of “censorship” is: “The suppression of speech, public communication or other information on the basis that the material is considered objectionable, harmful, sensitive, or “inconvenient.” Censorship can be conducted by governments or private institutions or other controlling bodies.” So yes, by definition, social media platforms “censor” people, by blocking them based on one aspect of the definition “harmful, sensitive or inconvenient.”
But the big question is, “Does this violate the First Amendment?” The answer is no. The First Amendment reads, “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 people to peacefully assemble and petition the government to redress grievances.” So, we can draw from this that social media platforms taking down people’s posts or suspending their accounts does not go against the First Amendment. The reason is that the entire Bill of Rights only applies to government agencies. The beginning of the First Amendment directly addresses Congress, but it also applies to state and local governments through the 14th amendment. As we know, Twitter, Facebook, and other social media platforms are all private companies so the First Amendment does not limit their behavior.
If the First Amendment applies to the government, what about when cities or other government agencies have social media accounts? These are often known as “forums”: think of them as a public marketplace for ideas. The first kind is open forums, where they cannot take posts down under their discussion board unless it goes against the overall platform’s guidelines. Limited forums, on the other hand, are often discussing one topic, and they can set restrictions on what happens there.
Another thing that provides immunity, or protection, to website publishers and social media companies is a piece of legislation known as “Section 230.” This section has existed since 1966 but it was probably not known by anybody until the last few years. It provides immunity for website publishers from third party content. Now this means no provider or user of an interactive server shall be treated as a publisher or speaker of the material provided by another content provider. So if something offensive or insensitive was said on a social media platform, the company cannot be sued because of what somebody said on its platform. Imagine you had a bulletin board hung on a wall and someone put a bad poster on it. Section 230 says it is not your fault that the poster is on the board – you shouldn’t have to pay money to someone who was harmed by what the poster said. This came to light in the past few decades when terrorists used these broad platforms to convince people to do some pretty bad stuff and the social media companies got sued for (unknowingly) helping to distribute information about terrorists. Section 230 says the companies are not responsible and can’t be sued. This is another layer of immunity for social media companies.
We all know social media as a quick click place where you are constantly making decisions with one move of your finger. But, in some cases, like user agreements, this impulse movement is more important than you think. If you think you don’t know what user agreements are, you’ve probably still seen them before. They’re those little boxes that pop up on the screen with a million fine-print words and a big blue AGREE to button underneath. When was the last time you actually read one of those? These are also known as “clickwrap agreements” because you have to hit something affirmative before you continue with the service. And yes, the small paragraphs of big words immediately draw people away from reading them, so users have tried to sue, but the agreements have been upheld because you have the choice to read, you just choose not to. But if you did choose to read, you would find everything stated for you. Word for word describing how they reserve the right to take down posts and suspend or fully close your account and their guidelines/reasons for doing so.
There are limitations, however, to when social media companies can take down your posts. Litigation that came out of the Jim Crow era rested on the equal protection clause in the 14th amendment to improve the treatment of minorities in “public accommodations,” like railway cars, restaurants, and hotels. These state that businesses cannot discriminate against customers based on race, religion, heredity, gender, or other unfair causes.
Another topic students often wonder is “Could I be disciplined by my school because of what I put on social media?” The short answer is yes. School officials can discipline a student for things they post on their private accounts even if it is not during school hours or on campus grounds. For example, a student-created an offensive rap song about other people in his school, and then posted it on Facebook and Youtube. It was created off-campus but the boy was still punished, and the Federal court said it was fair for the school to discipline him.
So today, legally, social media companies have full rights to control what content is on their platforms and regulate it by their guidelines. Who knows what the future holds as these issues continue to capture people’s attention?
Bibliography
“Balancing Social Media and the First Amendment.” Uptown Article, Municipal Association of South Carolina, October 2020, https://www.masc.sc/Pages/newsroom/uptown/October%202020/Handling-Social-Media-Posts-of-Officials-Staff.aspx. Accessed January 20 2021.
Strossen, Nadine. “Does the First Amendment Apply to Social Media Companies?” First Amendment Rights on Social Media?, Talks On Law, https://www.talksonlaw.com/briefs/does-the-first-amendment-require-social-media-platforms-to-grant-access-to-all-users. Accessed January 21 2021.
Wasielewski, Jason. “Censorship, the First Amendment, and Social Media.” The Little Military History Podcast, The Little Military History Podcast, 13 January 2021, https://podcasts.google.com/feed/aHR0cHM6Ly9hbmNob3IuZm0vcy8yNzJhNTBiOC9wb2RjYXN0L3Jzcw/episode/NDQ0NTczOTgtYjMzYi00MTgzLTlmMzYtNzMzM2I1MTZlYWY4. Accessed 20 January 2021.
Spoke with local attorneys: Kay Levine and Jennifer Keenan
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