The intersection of free speech and social media has created a firestorm of controversy in 2019. Internet platforms, like YouTube, Twitter, and Facebook, what some have called the modern-day version of the public square, have been criticized for not regulating content. Opponents believe internet companies like Facebook have too much power. Politicians have pushed for regulations, wanting to either trim that power or break up the company. Supporters believe social media platforms give everyone a voice and defend the liberal values of free speech. The debate over these timely and urgent issues is far from over, and sure to dominate public discourse in 2020.
Most know that the First Amendment protects individuals from government censorship. But how do the censorship rules apply to the internet? While social media platforms are private companies and can censor what people post on their sites, not all internet speech is worthy of First Amendment protection. Just ask Anthony Elonis.
“There’s one way to love ya, but a thousand ways to kill ya.”
That’s not dialogue from a thriller I am writing. Those are words from a part of Anthony Elonis’ Facebook tirade about murdering his estranged wife. His social media statements, along with other digital vitriol about murdering FBI agents and schoolchildren, landed him in prison. Elonis appealed his conviction all the way to the Supreme Court. Ultimately, SCOTUS overturned the conviction in 2015 on the issue of mental intent to threaten, something the prosecution had not proven.
The Supreme Court’s decision in Elonis v United States created a lengthy discussion over what forms of expression are or are not protected by free speech. In particular, where do you draw the line between social media and free speech? Internet speech is important for writers, especially since most of us constantly use it as a means to connect with others and publish creative content, whether on social media, websites, blogs, or online magazines. You cannot be a writer in this century and not use the internet as a means of expression, which is why writers should understand the limitations of free speech on the internet. The freedom is not entirely “free.”
The First Amendment
Under the First Amendment, “Congress shall make no law…abridging the freedom of speech, or of the press.” The right to free speech protects individuals from government censorship, including all government agencies and officials, whether federal, state, local, legislative, executive or judicial. The government cannot fine, imprison, or slap you with civil liability for what you say except under certain circumstances.
While the Supreme Court in Reno v. ACLU extended the freedom of speech to the internet, the constitutional right of free speech only restrains the government, not the private sector, like individuals or organizations. Companies like PayPal, Google, Facebook, Twitter, or private employers are free to regulate speech.
Limits On Internet Speech
Most people feel a lack of restraint when communicating online in comparison to communicating in-person. Psychologists call it online disinhibition, i.e. when anonymity and invisibility are present, people are more likely to say what they want even if it is derogatory, shaming, or vindictive, often justifying their comments as free speech. As Clairee Belcher said in Steel Magnolias, “…if you don’t have anything nice to say about anybody, come sit by me!” But in this case, Clairee might change that to “come post it on my Facebook page.”
But not all online speech is created equal, Clairee. There are limitations to the First Amendment.
- Content-Related Restrictions — Most content related speech is protected from government regulation, even vulgarity, hate speech, and blasphemy. But the government can suppress certain ideas and messages from a few narrow categories such as:
- Obscenity – Most forms of obscenity fall within the freedom of speech. But if the obscenity reaches a high-test threshold, like hard-core, sexually explicit pornography, the speech is not protected. Companies like Facebook and Twitter also regulate outside boundaries like this on their platforms too.
- Fighting words – The government can prohibit speech used to inflame another (like a personal insult) that is likely to lead to an immediate fight. This would include speech meant to incite violence, hatred, and encourage others to commit illegal acts. This would not include political statements that offend others and provoke them to violence — like anti-abortion protesters that provoke violence from their targets, or church members yelling obscenities that provoked LGBT people to attack. It also doesn’t include hate speech, which means contemptible, bigoted speech is usually protected.
- Defamation – False statements that damage a person’s reputation are not protected.
- Child pornography – Speech that depicts a minor performing sexual acts or showing their privates is not protected free speech.
- Crimes involving speech – Any speech used to commit a crime is not protected, e.g. perjury, blackmail, and harassment.
- Incitement – Speech that is directed to incite or produce imminent lawless action, i.e. encourages others to engage in illegal activity, is not protected free speech. Incitement has been extended to cover repeatedly encouraging someone to commit suicide.
- True threats – Threats to commit a crime are not protected free speech but there must be mental intent to commit the crime. Like Anthony Elonis’ case, the prosecutors must, but didn’t, prove mental intent for there to be a true threat.
- Copyrights and trademarks – Infringement of some else’s copyright or trademark protected content will not withstand a free speech defense.
- Commercial speech – Most advertising is protected free speech but things like false advertising are not and can be restricted by the government.
- Content-Neutral Restrictions — The government can suppress speech when the restriction is done without regard to the content or message of the speech, e.g. regulating noise, protesters blocking traffic, or the use of obstructive signs.
- Special Government Relationships — The government can suppress speech when a special relationship to the government exists. For example, speech by government employees can be restricted if it keeps the employee from doing their job (a police officer making racist statements, a public school teacher encouraging students to experiment with drugs, a CIA employee who releases classified information). The government as head of the military and prisons can regulate the speech of the military officers and inmates.
- Individuals and Private Organizations — As noted above, the First Amendment only applies to the government’s attempt to restrict free speech. It does not apply to individuals and private organizations like internet companies, social media groups, blogs, online journals, and employers.
- Private companies and institutions have the right to restrict their employees’ speech. However, depending on the nature of the subject matter attempted to be suppressed, your employer may run afoul of other laws, such as civil rights violations, discrimination, or labor laws (like reporting labor violations or whistleblowing).
- Likewise, private organizations such as Facebook or Twitter can restrict the use of their platforms as they see fit. Although social media sites like Facebook might seem like an ideal public forum for posting unpopular or controversial content, your content can be removed or you can be barred from using the social media site and you would not have a first amendment claim. Nor are such internet companies liable for what people say or do on their platforms (e.g. threats, obscenity, solicitations to commit crimes) since the Communications Decency Act protects internet companies.
- Internet companies like Facebook and Twitter (see Mark Zuckerberg’s Georgetown University speech) refuse to be the arbiter of truth and censor content posted on their platforms, defending liberal values of free speech, while regulating only the outside boundaries of its platform like obscenity or violent content that would degrade user experience.
Connecting on social media and publishing content online are important areas of expression for writers. But remember that not all speech is protected under the First Amendment. Often the rules can be blurry as to what is prohibited and what is not, especially when many social evils are not within the First Amendment exceptions and thus are protected free speech. If you have specific questions about your social media content, consult a lawyer with First Amendment experience.
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.