Social media walks a fine line when it comes to the First Amendment
The Constitution guarantees Americans the right to free speech – but what about when you are on Facebook?
After Facebook and other social media services removed “The Alex Jones Show” and other content created by Jones-founded Infowars, the topic of free speech online has intensified.
Almost in tandem over several hours Sunday and Monday, Apple, YouTube, Facebook and Spotify removed shows, podcasts, channels and pages for the far-right sites. Since then, LinkedIn, Mailchimp, Pinterest and Stitcher have removed or terminated Jones’ and Infowars’ accounts, too.
Jones says the move smacks of censorship. Sen. Ted Cruz, R-Texas, has griped about Facebook becoming the “arbiter of political speech.”
Others say the online sites were justi- fied for removing Jones and Infowars for violating these companies’ policies on hate speech and have taken Twitter to task for not following suit.
Much of the discourse revolves around whether Facebook, Twitter and other tech companies that hold huge – but not total – sway over how information is shared should handle the principle of free speech.
In the online world, businesses often back the notion but aren’t legally bound to it. Facebook, Twitter and YouTube may be social forums, but each is run by a company that set its own rules. These don’t need to follow strictures on free speech that the government does.
“As private companies, Apple, Facebook and Spotify can decide what content appears on their platforms, so I wouldn’t call (the tech sites’ actions) a violation of speech,” said Lata Nott, executive director of the First Amendment Center at the Freedom Forum Institute in Washington, D.C. That’s different from the public sphere. Even hateful speech is protected by the First Amendment, which precludes the government from abridging citizens’ freedom of speech and expression.
Case in point: The First Amendment allowed for far-right protestors last year to publicly gather in Charlottesville, Virginia, in a protest that turned deadly. Similarly, white nationalists have the right to protest at a “Unite the Right” demonstration planned Saturday in Washington.
❚ What did Facebook and the others say Jones and Infowars did? Facebook said it removed four of Jones’ page for repeatedly posting content that included “hate speech that attacks or dehumanizes others” and violating its policy against bullying, the network said in a post on its website.
That echoed Apple’s statement that it “does not tolerate hate speech.” And YouTube pointed to Jones’ and Infowars’ repeated violations of its hate speech and harassment policies for account terminations. Last week, Spotify said it had removed some episodes of “The Alex Jones Show” because it violated its policy against “hate content.”
Jones has gained attention for conspiracy theories, including his claim that the 2012 Sandy Hook Elementary school shooting was staged. He also called the 9/11 terror attacks a government “inside job” and promoted the Pizzagate conspiracy theory.
❚ Were Jones’ and Infowars’ free speech rights violated? No. Facebook and other social media platforms are private companies and have terms of service users or consumers agree to in order to participate. But beyond the First Amendment, there is a “broader social free speech principle” people may be applying in the Jones and Infowars case, said Alex Abdo, senior staff attorney with the Knight First Amendment Institute, a nonpartisan, not-for-profit organization at Columbia University.
“There is this idea in this country, since its founding, people should be free to say what they want to say,” he said. “That is what this is about ... the question of whether social media companies that exercise enormous influence over public discourse ought to directly silence participants.”
❚ What about Apple and Spotify? Like Facebook and YouTube, which is owned by Google, each are companies. And, in the case of iTunes, Apple is “sort of deciding what merchandise is available” in its digital music store, the First Amendment Center’s Nott said. Apple still offers the Alex Jones Radio and Infowars apps in its app store, however. The Infowars Official App ranked No. 3 among all News apps Wednesday.
As for Spotify, the music streaming service is deciding what they will offer subscribers and free listeners. “It’s a different analogy than like a public square,” where the government protections of free speech would come into play, she said.
❚ What about Twitter? CEO Jack Dorsey in tweets late Tuesday said the social network had not removed Jones and Infowars’ Twitter accounts his “Infowars” show because “he hasn’t violated our rules. We’ll enforce if he does.”
Where Facebook says it does not allow hate speech, Twitter does up to a point, Nott said. “If you attack somebody and promote violence against people who fall into hate speech categories they will ban you, but they don’t explicitly ban hate speech,” she said.
❚ Were they justified in their removal of content? Legally, yes. But for users and lawmakers, that’s often not the only standard.
Facebook and social media platforms have tried to take a “try not to take anything down if you can possibly avoid it approach,” said Emma Llanso, director of the Free Expression Project at the Center for Democracy & Technology.
But the crisis over false news and the manipulation of fake accounts and Russian bots on Facebook, YouTube and Twitter has drawn congressional and regulatory attention in recent months.
Concerns about intimidation on social networks against some groups – in- cluding women, minorities and the LGBT community – has forced some to act. Facebook and Twitter have publicly expressed efforts to lessen the abusive environment on their networks.
Congress has already held hearings in the wake of the Cambridge Analytica crisis, in which as many as 87 million Facebook users’ data was shared, without their knowledge, with a data mining firm used by the Trump campaign in the 2016 election. And lawmakers have voiced concerns about fake Russian accounts and terrorist content on Facebook, Twitter, YouTube and Instagram.
Earlier this year, Facebook made public its guidelines for what users can post on the 2.2 billion-strong service. More than a year ago, Twitter pledged to address complaints about racist, sexist and anti-Semitic harassment.
As part of a balance to keep the majority of their audiences feeling safe to use their networks, “the social media platforms ... are going much farther than the government ever could as far as restricting speech,” Llanso said.
❚ What are possible repercussions? Expect Congress to continue to weigh in. Facebook has scheduled a planned internal audit conducted by an outside law firm in response to criticism from lawmakers about the network’s perceived anti-conservative bias. And there will be calls for more transparency about how social networks make decisions on what speech is not allowed, too. “If the companies want this power then they have an obligation to explain publicly when they use it, why, and with what protections there are against misuse,” Abdo said.
Groups including the American Civil Liberties Union, the Center for Democracy & Technology and other tech experts and advocates have begun crafting principles to prevent the squelching of speech as social networks enforce content guidelines.
Silencing voices in the digital realm is a slippery slope, Llanso says. The promise of the internet is that its decentralized nature allowed for the sharing of unlimited viewpoints.
If the tech companies’ action against Jones and Infowars was coordinated, that coordination could, in theory, continue even into “the technical operation of the internet,” she said. “That could make it harder to get an alternate perspective out there. The more coordination there is, the more we have reverted to a system of centralized censorship that I think, rightly, we should all be concerned about.”
“There is this idea in this country, since its founding, people should be free to say what they want to say.”
Alex Abdo A senior staff attorney with the Knight First Amendment Institute