Spring 2022 Symposium

Introduction

At every waking second, someone is using social media to engage in pertinent news, lighthearted follies with their peers, or anything in between. Social media use is on the rise, and it has become a critical part of how people interact with the outside world[1]. The rapid increase of social media usage has posed a new set of legal challenges for the Court when it comes to the power that the government has to regulate social media sites, and the discretion that social media sites are afforded to regulate their users. The Court is faced with a new uncertainty about how First Amendment protections on freedom of speech find their place in the world of social media. In this brief paper, I will examine a few of these newfound legal questions regarding the usage of social media, and analyze their relevant case law. 

So what exactly does it mean when we say “social media?” Before jumping to make  broader legal arguments about social media usage, it is necessary to make the distinction between the different uses of social media sites. The recent explosion of internet usage means there are hundreds of new ways for people to communicate online - and not all these forms of communication are the same. A private message sent to a private recipient on one platform, such as Snapchat, that is intended to disappear within ten seconds is fundamentally different from a public post on Instagram that is accessible to anyone. To put these two different modes of internet communication all under the broad umbrella of “social media usage” would ignore the complexities undergirding these interactions. This distinction, as a result, is not just a trivial issue of semantics. When it comes to legal regulations and conflicts over social media communication, as well as the potential posture of the Court declaring judgements regarding such communication, the differences in private vs. public social media interaction must be taken into consideration. The Court has yet to make any clear acknowledgment about the distinctively different modes of communication on social media, despite its needed clarification. Making definitive distinctions on private vs. public communication on social media will make it easier for legislators to propose future regulations, as well as aid the Court in evaluating whether those regulations are legally permissible. Acknowledging social media’s various uses could allow the Court to approach legal conflicts on social media with greater clarity, which in turn, could establish more succinct rules on social media conduct and remove the current ambiguity plaguing the discussion.

Given the prominent presence of social media in our society, creating a clear framework about the different forms of social media use and how they will be treated in the face of the law is quite necessary. As of 2021, roughly eighty-two percent of all Americans had at least one social networking profile, and on average, Americans spent 65 minutes a day on social media[2]. For all of these users and the substantial amount of time they spend on social media platforms, users greatly need some enunciation of where their protections lie when they utilize one of these sites. A just legal system must bolster clarity and transparency - however, these elements are absent when the legal protections of the First Amendment on social media sites are murky. Any reasonable person could acknowledge how the consequences of private communications on social media are starkly different from those of public posts, and it is now our legal system’s turn to legitimately acknowledge these differences.

Existing Legal Uncertainty Surrounding Social Media

To begin, it is important to overview the legal regulations and background regarding social media usage. Section 230 of the Communications Decency Act (CDA) has been one of the most influential provisions when it comes to social media conduct, outlining how the protections of the First Amendment only apply to governmental regulations, not private company regulations. 47 U.S.C. § 230. Internet companies can never be held liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Id. This legal protection for social media sites is undoubtedly important - and even then, the CDA still only broadly refers to social media sites under the umbrella of  “interactive computer services” in the statute. Id. Recent debates about social media’s role as a ‘public forum’ have also been sparked. In Knight First Amendment Institute at Columbia University v. Trump, the Second Circuit Court discussed how President Trump’s Twitter account resembled a “public forum.” Knight First Amend. Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 233 (2d Cir. 2019). The Supreme Court has since dismissed the case as moot, due to the fact that when President Biden was elected in 2021, he replaced Trump as the petitioning party on Supreme Court cases regarding the office of the president. Nonetheless, the occurrence of this case during President Trump’s time in office highlights the budding conversations on how the Court should view and define social media platforms. The CDA explicitly states: “these platforms function in many ways as a 21st century equivalent of the public square” § 230. Designating social media as a public square would allow the government to place reasonable time, place, manner restrictions on social media speech. ​​See Cornelius v. NAACP Legal Def. & Educ. Fund Inc., 473 U.S. 788 (1985). It seems reasonable to consider public posts and interactions that occur on social media to be a sort of ‘public square’ where the government may have more regulation ability. However, when it comes to private interactions between individuals online, the concept of the public square starts to crumble. It would be easily argued that allowing the government to impose any sort of restrictions on online private interactions between individuals would go against integral American principles. The public vs. private interactions that occur on social media have different intentions, different consequences and therefore should be regulated in different ways. It is clear to see that there is still much legal uncertainty surrounding the official uses and definitions of social media. An uncertainty that is due in part to the fact that the different modes of communication on social media have yet to be distinctively acknowledged and considered by the legal system.

Failure to Properly Analyze Specific Social Media Use in Mahanoy

A prime example of the Court’s failure to adequately analyze and differentiate between certain forms of social media uses occurs in the case Mahanoy Area School District v. B.L. by & through Levy. In this case, put briefly, a public high school student was banned from her school’s junior varsity cheerleading team after posting a photo to her Snapchat story that contained profanity directed towards her high school. Mahanoy Area Sch. Dist. v. B. L. by & through Levy, 141 S. Ct. 2038 (2021). The Court ruled in favor of the student, holding that the school violated the student’s First Amendment rights by suspending her from the team. Id.

There are many legal principles at play in Mahanoy concerning the powers of a school to regulate off-campus speech, and the balance between promoting an orderly school environment while still protecting freedom of speech. The opinion touches on the Tinker standard, a rule established in Tinker v. Des Moines Independent Community School District that allows public schools to regulate student speech only when the speech causes substantial disruption to the school environment. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 513 (1969). The opinion also touches on the concept of in loco parentis; the idea that the school should not be able to stand in place of the parents when it comes to off-campus speech. Mahanoy, 141 S. Ct. at 2040. Much of the discussion in the opinion debates what kind of speech the student’s post constituted: was it off-campus speech that had significant disruption on the school’s environment and therefore could be subject to school regulation, or was it off-campus speech that fell under the principle of in loco parentis and was completely protected under the First Amendment? The nature of this speech that took place on social media played a substantial role in the outcome of this case. Yet, very little discussion was given to the particular fact that the student’s speech was directed in the  temporary nature of a Snapchat post to a private circle of friends, rather than a broad public statement. The case gives very little acknowledgement to the nature of the student’s speech and use of Snapchat as her tool of communication. The following is really the only point that the Court makes in reference to the nature of the student’s social media use:

There, B. L. used her smartphone to post two photos on Snapchat, a social media application that allows users to post photos and videos that disappear after a set period of time. B. L. posted the images to her Snapchat “story,” a feature of the application that allows any person in the user's “friend” group (B. L. had about 250 “friends”) to view the images for a 24 hour period…B. L.’s Snapchat “friends” included other Mahanoy Area High School students, some of whom also belonged to the cheerleading squad. At least one of them, using a separate cellphone, took pictures of B. L.’s posts and shared them with other members of the cheerleading squad. Id. at 2043. 

Considering the consequentiality for this case in determining free speech rights in the school context, the Court gives very little analysis on the actual medium that the speech was communicated through. There is a vague statement that the “features of her speech, while risking transmission to the school itself, nonetheless (for reasons we have just explained, supra, at 2046 – 2047) diminish the school’s interest in punishing B.L. 's utterance.” Id. at 2047. This broad overlook on the specifics of the communication is a mistake. The student posted the photo only to a circle of private Snapchat friends, presumably with no intention that school officials would see it. Part of the Court’s analysis rests on whether or not the student’s speech posed a substantial disruption at the school, yet the Court fails to analyze how the nature of a temporary, 24-hour Snapchat post itself seems to lack any intention to create substantial on-campus disruption. Id. at 2044. The student could have made a public post on Instagram or Facebook, where the speech would have been more permanently accessible to anyone, yet in this case the student chose a more private and casual facet of social media by selecting Snapchat as her preferred mode of communication.

Admittedly, an argument also could have been made that the student’s private circle of Snapchat friends is rather large at 250 people, so the student might have reasonably assumed that the content could eventually, or at least have the potential, to reach a large audience and circulate the school’s campus. A more private mode of social media communication could have been utilized through the private messaging system on Snapchat if the student truly had intended that people outside of her designated circle would not see the post. Regardless, any discussion about the specific social media action taken by the student - whether it be a post to private friends or a private message - is lacking in the opinion. Despite the outcome of the case, it is problematic that the specifics of the student’s social media use did not play a greater role in the Court’s discussion. The Court fails to establish any standard surrounding social media communication to private friends on a platform like Snapchat, missing an opportunity to generate more clarity about an individual’s rights and protections when it comes to different forms of their social media usage.

Following Legal Principles Set in Pacifica and Sable

The Court should make a greater effort to acknowledge the differing modes of communication on various social media sites, and possibly establish a general principle regarding more public forms of social media communication vs. private forms of social media communication. We can look to the Court’s analysis in similar cases like F.C.C. v. Pacifica Foundation, and Sable Communications of California, Inc. v. F.C.C. as examples. It should be noted that these cases took place in the 1970s and 80s, before the time of social media and therefore do not directly reference social media whatsoever. However, it is the legal principles established in these cases in regards to new communication technology that are of interest here. In Pacifica, the Court ruled that the F.C.C. had power to regulate an indecent radio broadcast because of the unique nature of the broadcasting medium: “Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people” F.C.C. v. Pacifica Found., 438 U.S. 726, 727 (1978). Opposingly, in Sable, the Court struck down a ban on indecent “dial-a-porn” telephone messages on the grounds of the First Amendment. Sable Commc’ns of Cal., Inc. v. F.C.C., 492 U.S. 115, 131 (1989). The Court distinguishes how the communication medium of Sable is different from the radio broadcasting in Pacifica, because “the dial-it medium requires the listener to take affirmative steps to receive the communications.” Id. at 116. In these two cases, the Court arrived at their decision based on nature on the communication medium itself. In Sable, the Court made a specific note on how the telephone system’s mode of communication has different consequences than that of a radio broadcast. Id. at 116. A radio broadcast is much more intrusive and accessible into a person’s life, whereas telephone communications are more hidden and less accessible because they require the individual themself to take action by dialing the phone. Given these key differences, it seems reasonable that the Court reached different decisions in each of these cases by taking the specifics of the communication medium into account. 

The approaches used by the Court in Pacifica and Sable are prime examples of why it is crucial to make distinctions between the specific nature of communication mediums. Unlike Mahanoy - where the Court failed to properly analyze how the nature of the social media communication factored into the case - the Court gave adequate consideration on the nature of the radio broadcasting and telephone communication in these previous cases. The legal principles applied in these cases should similarly be applied to social media platforms, and the different modes of communication that exist on those platforms. For example, there are similarities between the dial-it service analyzed in Sable and private messaging features to selected people on social media. Both modes of communication require taking a deliberate action to interact with another specific service/user. In the dial-it medium and private messaging, the intent of the communication is more discreet and directed only to a specific group. The speech in these scenarios is worthy of more protections, because it more closely resembles a private conversation. On the other hand, the nature of the radio broadcast in Pacifica and public posts on social media are more public and could be subject to heightened regulations. The content of broadcasts and public social media platforms are easily accessible to most people, and the intent of these communications are to be public and received by a wider audience. Furthermore, these forms of communication may not necessarily be something that a person deliberately wishes to seek out and find. One has less control over what content they will hear on a radio that is publicly broadcasted in their home, their car, a store, etc. Similarly, public posts of related interest, of similar users, or of people that a user may know are often pushed to individuals on their social media feeds. It is not necessarily something that a social media user must deliberately seek out to find on the site. This touches on a conversation about social media platforms that use algorithms to promote certain forms of public content to certain people - another facet of social media to keep in mind when Courts analyze social media interactions. Overall, looking at cases like Pacifica and Sable may help establish a framework on how different modes of communication on social media may be analyzed and regulated.

Final Thoughts

The conversation on the specifics of social media communication does not end here. Identifying and mirroring the legal principles at play in Pacifica and Sable may be a necessary first step in making distinctions between private vs. public social media communications - it is undoubtedly important to at least acknowledge the different nature of speech that occurs in a public setting vs. speech that resembles a privately-held conversation between individuals. Following in the example of these cases, the Court has a clear opportunity to eliminate some of the ambiguity surrounding the legality of different social media regulations on a public vs. private distinction. Yet, given the great scale of social media networks and their features, social media communication can not always be as simply classified as either private or public. Looking forward, the Court is still faced with future questions about how to specifically define different social media uses. Take the example of Chaney v. Fayette County Public School District: the Court ruled against a student who brought action against her school district for using a photo she had posted wearing a bikini on Facebook. Chaney v. Fayette Cty. Pub. Sch. Dist., 977 F. Supp. 2d 1308 (N.D. Ga. 2013). The school district used the student’s photo in a county-wide community awareness presentation, and the student argued the school’s use of the image violated her privacy rights. Id. at 1312. Part of the Court’s decision rested on the student’s account setting on Facebook to allow “friends and friends of friends” to view her posts - one of the broadest privacy settings available allowing her posts to be viewed by third parties. Id. The Court struck down the student’s argument that she had a ‘reasonable expectation of privacy’ on her social media account, due to the fact that she had selected a very broad privacy setting for the account. Id. at 1315. The nature of this “friends and friends of friends” setting does not clearly fall into a sphere of either private or public. It rests more in this ‘gray area’ of specific social media use. As more social media companies develop, additional features like this “friends of friends” setting will develop, and the gray area of specific social media use will expand. It is problematic to leave this gray area of use unattended: as seen for the student in Chaney, the lack of clarity about the legal regulations surrounding her social media use created very real conflicts for her in the school district. Thus, it is necessary for the Court to start asking themselves how they will view more complicated social media interactions and allow them to be regulated. The private vs. public distinction is an important first step, and will ideally highlight the further steps that the Court must take to acknowledge the differences and complexities of social media usage. 

Ultimately, given the ever-increasing rise of social media, our legal system has a pressing “to-do list” when it comes to social media regulation. At the top of this list must be an effort to make clearer distinctions and definitions surrounding specific social media usage. Whether it be following private vs. public communication distinctions from cases like Sable and Pacifica, or adopting some other definitive framework, there is a need for the Court to take action and establish clarity on the matter of social media use. Doing so will promote the values of clarity, predictability and efficiency in our legal system. Without making specific distinctions regarding social media use, the Court is leaving the people who constantly post and communicate through social media in a place of legal uncertainty. There is a lack of clarity in how the Court will respond to speech protection and privacy on social media, therefore making it difficult for users to know the various consequences of their communication methods on these platforms. Failing to establish this distinction will also cause great inefficiencies. Cases like Mahanoy and Chaney will become more frequent, unless the Court can establish some definitions and rules to avoid these legal conflicts altogether. Ensuring the proper operation of our legal system when it comes to social media use, and clarifying how the specific actions of social media users will be viewed in a legal context are crucial reasons to motivate the Court to take action. Whether we like it or not, social media is a part of our everyday communication, and it is the responsibility of our legal system to take notice.

References

[1] Perrin, Andrew. “Social Media Usage: 2005-2015.” Policy File, Pew Research Center, 2015.

[2] Social Media Usage in the U.S., STATISTA (Mar. 23, 2022), https://www.statista.com/statistics/273476/percentage-of-us-population-with-a-social-network-profile/#:~:text=This%20equals%20approximately%20223%20million%20U.S.%20social%20media%20users%20as%20of%202020.