Spring 2022 Symposium

Introduction

In the wake of Knight First Amendment Institute vs. Trump, in which the Court ruled that then President Donald Trump violated the First Amendment by blocking users on Twitter which constituted a “designated public forum”, an awareness of the delicate relationship between the First Amendment and society’s digital dimension has been awakened across the political spectrum. Especially now with Elon Musk attempting to acquire Twitter, citing his desire to protect free speech on the platform, both sides of the spectrum support government regulation of social media companies. On one hand, conservatives believe that social media companies like Meta and Twitter are monopolies that actively restrict conservative speech. On the other hand, liberals believe that corporations like Parler encouraged or rather did not stop their users from planning the events surrounding January 6, 2021 at the Capitol. Although each side presents different reasoning for government regulation, both conservatives and liberals agree on one thing: an increase in regulation of social media companies. It is evident that in today's day and age of social media, regulation needs to be addressed. Therefore, social media companies should be treated as analogous to broadcast media for three main reasons: 1) it is what the framers wanted, 2) the outdated reasoning of Reno v. ACLU, in which certain provisions of the Communications Decency Act were deemed unconstitutional and 3) the Court’s central holding in Packingham v. North Carolina which held that an individual can not be prohibited from accessing social media sites.

Three Potential Analogies for Social Media

For years now, legal scholars have attempted to make sense of the role social media plays in the legal world. Since the internet and social media is a relatively new phenomenon, there is a lack of case law regarding social media’s relationship with the First Amendment. According to Valerie C. Brannon, a legislative attorney for the Congressional Research Service, legal scholars have narrowed down three possible analogies for Courts to adhere to when analyzing cases involving social media corporations. These analogies, as determined by experts within Congress, are the three most probable analogies that could eventually become adopted by the Courts. The first analogy would be social media sites as the “company town,” in which platforms would be treated as state actors who are bound to follow the First Amendment when regulating protected speech. The second analogy would be social media sites as news editors. Companies would receive full protections of the First Amendment, meaning platforms would not be required to abide by a user’s protection of freedom of speech. Further, any potential government regulation would be subject to strict scrutiny, which the Courts currently use when analyzing government regulation of social media platforms. The last analogy would be social media sites as broadcast media, in which the Court could allow greater government regulation of platforms compared to newspaper editors, but would regulate less than the company town. [1] Broadcast media is currently regulated by Congress/FCC. Courts have previously noted that broadcast media exhibit special characteristics such as its scarcity and reach that call for an intermediate instead of strict scrutiny under the law, meaning the government does have a greater interest in regulation.

The first two analogies seem too radical and less likely to be adopted by the Courts. This is because Donald Trump was able to appoint a significant number of conservative justices during his time in office. A handful of federal courts, including that of the Supreme Court, are a conservative majority, and most conservatives follow some sort of historical or originalist approach when interpreting the Constitution. Historically, private actors have not been required to abide by the First Amendment. And today, many conservatives are against social media companies censoring or removing conservative speech from their sites. The third analogy seemingly strikes a clear balance between the governments’ interest in protecting freedom of speech and a corporations’ right of not being constitutionally bound to follow the First Amendment.

An Analysis Through the Founding Father’s Point of View

Social media sites should be treated as broadcast media because it is what the framers would have supported and wanted. After defeating Great Britain during the Revolutionary War, the colonists wanted to ensure that one person or group would never be too powerful. They created a system of separation of powers and then checks and balances to make certain that no branch would be supreme. What the framers wanted to prevent was the “tyranny of the majority” that arises when a majority group’s interests and objectives supersede that of the minority group, resulting in minority rights being oppressed. At the time of ratification, the internet and social media were not around. If the framers were alive today, however, they would be witnessing their fears. According to Pew Research, 72% of Americans believe social media companies have too much power and influence in politics today. [2] This is due to the algorithm that social media companies use, which entrepreneur and author Nick Stager coins as the “tyranny of the extreme.”[3]

The “Tyranny of the Extreme”

The main purpose of social media algorithms is to maximize the user’s screen time, since the site's revenue increases when more users are constantly interacting with the site. Stager argues that the prioritization of screen time results in "extreme or unconventional ideas or posts" being exceedingly promoted, as those ideas furthest from the general consensus tend to "strike a chord...with an extreme minority." The minority then continues to share it, feeling either "validated or shocked into" interacting with content that is so far removed from the norm. The more extreme the idea — the further from the norm and consensus — the more likely it is to impact the emotions (either extremely positively, or negatively) with an extreme minority, which will feel validated or shocked into sharing it further.” [4] What this all demonstrates is that when companies promote these extreme posts to make more revenue, such posts begin to appear more normal to the average user, which suppresses the factual or actual normal. Since algorithms promote the posts that receive the most attention, eventually our feeds are full of these extreme posts, and it becomes difficult to differentiate what is factual vs. unfactual and what is right vs. wrong. This allows a minority to command public opinion. [5] Although the framers were not necessarily concerned about this so-called tyranny of the minority, this emphasis on the extreme results in a group having complete control over another group, ultimately suppressing ideas without any regulations or safeguards in place in the same fashion as a tyranny of the majority. If the framers knew that a powerful minority of technology executives would have the ability to suppress speech and promote its own ideas to over 80% of the US population with no legal repercussions in place, the framers may have been more cautious of allowing private entities to not follow the First Amendment when they regulate protected speech. Section 230 of the Communications Decency Act holds that a social media site is not liable for removing or restricting content from their services. Thus, a social media site can govern the speech of the majority of the population without being held accountable. Although one might argue that this reads as saying people with extreme ideas should be punished because a lot of people like to read what they post, it does not exclude the fact that what people are reading is not accurate or beneficial. In fact, due to the social media algorithm that social media platforms implement, a lot of people who enjoy reading extreme ideas indicate that social media companies are doing a great but necessarily dangerous job at promoting information that is false. Simply because many people are targeted and pulled into reading about extreme ideas provided by algorithms does not mean that the ideas should be permitted or conveyed without any liabilities or legal repercussions.

Social media classified as broadcast media, then, is the best option for regulation moving forward. Just like broadcast media, the majority of U.S. citizens use social media and acquire political news. Just like broadcast media, social media companies set their own agenda and have an extraordinary amount of political power to influence others. As of now, the majority of the Supreme Court is conservative and will continue to be so for the foreseeable future. Some of the justices use the originalism method to interpret laws and since these companies display characteristics similar to those that the framers were wary of, Courts may be much more willing to increase regulation of social media through the broadcast media analogy as compared to other analogies.

The Outdated Reasoning of Reno v. ACLU (1997)

Additionally, social media sites should be treated as broadcast media due to the outdated reasoning of the Court in Reno v. ACLU. In Reno, the Court was asked to determine the constitutionality of certain sections of the Communications Decency Act of 1996, which criminalizes the transmission of obscene material on the internet. The Court argued that certain provisions of the Communications Decency Act were unconstitutional, holding that the regulations were an unlawful content-based blanket restriction of free speech. The Court further cited that the internet had not historically “been subject to the type of government supervision and regulation that has attended the broadcast industry,” that the internet was not “as ‘invasive’ as radio or television” because a person had to take action to receive a particular communication on the Internet, and that the internet could “hardly be considered a ‘scarce’ expressive commodity.” [6] Although this may have been true at the time, decades have passed since this opinion.

Today, as seen with the controversy surrounding Meta selling data privacy to third-parties, it is apparent that the internet today is as intrusive as radio or television, if not more invasive. For example, Meta and Google track their users. A significant portion of their revenue comes from selling user data to data collection companies, who in return sell the data to third parties for targeted advertising. If one searches for a pair of shoes on Google, they will be met with shoe advertisements on various app platforms, video games, and even in their email. Thus, these social media companies protrude on the everyday life of a social media user, since they can know where you are, what you are searching for, and your likes and dislikes at any given time. Even if one stops searching for shoes, they will still be met with shoe advertisements on various websites. As such, a person does not have to take action to receive a particular communication on the internet, since social media communication now appears virtually anywhere when a person interacts with the site. A person can change a news channel on their television or simply turn off the television, but in today’s world of social media, it is difficult to not search anything up online or participate on social media apps, which emphasizes the particularly invasive nature of  that the internet, at a level even higher than that of radio or television.

 An Application of Packingham v. North Carolina (2017)

Lastly, social media sites should be treated as broadcast media due to the central holding in Packingham v. North Carolina. In Packingham, the Court ruled that a law prohibiting registered sex offenders from accessing various websites was unconstitutional and violated the First Amendment. The Court argued that cyberspace is today “the most important place . . . for the exchange of views” protected by the First Amendment, analogizing Facebook, LinkedIn, and Twitter to traditional public forums and characterizing social media sites as “the modern public square.” [7] This equates social media to a public street or sidewalk. Just as it is unconstitutional for the government to prohibit someone from speaking on a public street for the most part, it too is unconstitutional to prohibit someone from speaking on social media. If, according to the Court, social media is the most important place for the exchange of views, and one can not be prohibited from accessing social media, does this now imply that the Court is more open to regulating social media sites? Since one can not be prohibited from accessing social media, the government would then be able to regulate sites and ensure that one is not being banned from participating on the site. This decision by the Court is in it of itself a regulation. It is ruling on a specific social media issue by regulating who can participate on social media. Since it is against the First Amendment to stop someone from accessing social media, why would it not be against the First Amendment to simply ban someone from social media or restrict their speech, just like social media platforms do everyday? Indeed, Justice Alito declined to join the majority opinion in Packingham, arguing that the majority opinion seems to “equate the entirety of the internet with public streets and parks.” [8] This argument implies the possibility of social media sites being treated as state actors and having to abide by user’s First Amendment rights. According to precedent then, Courts should be willing to adopt the broadcast media analogy. Because of the majority opinion in Packingham, the classification of social media as broadcast media would likely be adopted since Packingham’s holding that social media is a “modern public square” implies the opportunity and need for federal regulation. [9]

A Speculation on the Potential Acquisition of Twitter

Interestingly, Elon Musk may have recently come to a similar conclusion that social media companies will ultimately be regulated as broadcast media. This is evident by the fact that Elon Musk’s primary motivation for offering to acquire Twitter was that he believed Twitter limited freedom of speech. Moreover, his belief that Twitter should be regulated as a “company town” compelled him to move forward with the purchase in the first plan. Notwithstanding that Musk may be postering for a lower purchase price, he recently paused the transaction. One might argue that his reasons for delaying the transaction resulted from his similar analysis that Twitter will ultimately be regulated by broadcast media; therefore mitigating his interest in acquiring Twitter. Musk’s backing out is not so much a reflection of his disapproval of regulating social media as broadcast media, but a realization that government regulation would fix the problem he wanted to fix. Musk wanted to secure free speech protections yet regulating as broadcast media would secure those free speech protections from the government side, so Musk’s backing out isn’t a disapproval of that as some argue but rather a realization that government regulation could fix the problem better than him.

Conclusion

In conclusion, legal scholars have long hypothesized ways to treat social media companies under the law. According to Valerie C. Brannon, a legislative attorney for the Congressional Research Service, legal commentators have narrowed down three possibilities: 1) as the “company town,” 2) as news editors, and 3) as broadcast media. The first two analogies seem too radical for a Court to adhere to because of a conservative majority that many Courts currently exhibit, while the third analogy balances the government’s interest in protecting freedom of speech and a corporation's right of not being constitutionally bound to follow the First Amendment. Broadcast media is the best framework for the treatment of social media sites, for three main reasons; first, it is what the framers would have wanted, second, the old-fashioned reasoning of Reno v. ACLU does not take into account how social media and the internet have become embedded in everyday life, and third, the majority opinion and Alito’s dissenting opinion in Packingham v. North Carolina seems to hint at possible regulation of social media. These three reasons prove that treating social media as broadcast media will allow both sides of the political spectrum to get what they want while also following tradition and the ability to balance competing interests. Therefore, the best way under the law to treat social media platforms is to analogize them with broadcast media.

References

[1] Brannon, V., 2019. Free Speech and the Regulation of Social Media Content. [online] Congressional Research Service. Available at: <https://sgp.fas.org/crs/misc/R45650.pdf> [Accessed 26 May 2022].

[2] Monica Anderson, Most Americans Say Social Media Companies Have Too Much Power, Influence in Politics, Pew Research (July 22, 2020), https://www.pewresearch.org/fact-tank/2020/07/22/most-americans-say-social-

media-companies-have-too-much-power-influence-in-politics/.

[3] Nick Stager, Social Media and the Tyranny of the Extreme, Medium (May 5, 2019), https://medium.com/

hackernoon/social-media-and-the-tyranny-of-the-extreme-d5fd0f46c4cb.

[4] Nick Stager, supra note 2.

[5] Id.

[6] Reno v. Am. C.L. Union, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997).

[7] Packingham v. North Carolina, 137 S. Ct. 1730, 1732, 198 L. Ed. 2d 273 (2017).

[8] Packingham v. North Carolina, 137 S. Ct. 1730, 1732, 198 L. Ed. 2d 273 (2017) (Allito, S., concurring).

See the dissenting opinion in Packingham v. North Carolina (2017)

[9]  Packingham v. North Carolina, 137 S. Ct. 1730, 1732, 198 L. Ed. 2d 273 (2017) (Allito, S., concurring).

See the dissenting opinion in Packingham v. North Carolina (2017)