social media and free speech essay

Freedom of Speech in Social Media Essay

What are the advantages, disadvantages, and limits of freedom of speech in social media? Learn more below! This paper focuses on the importance of social media and freedom of speech.

Introduction

Social media & freedom of speech, hate speech on social media, reference list.

The freedom of speech is one of the crucial features of the democratic society. The personal liberty cannot be achieved without the ability to express your thoughts freely. It also means the opportunity to participate in the discussions and debates. George Orwell said, “If liberty means anything at all, it means the right to tell people what they do not want to hear”.

The media is a powerful mean of social progress nowadays. It is said that social media’s worldwide audience gives individuals new rights, responsibilities, and risks. Joshua Rozenberg claimed, “A tweet is not an email, it’s a broadcast”. The aim of this essay is to present my own opinion on the expressions by Orwell and Rozenberg and to discuss the influence of media on the human rights, responsibilities, and risks.

The social media represents the source and the mean of the information dissemination. It is difficult to imagine what the world would look like if we did not have the media. The dissemination of the true information is one of the pillars of the free society.

Nowadays, the breakthrough in this process has been achieved due to the development and implementation of the new media and information and communications technologies (ICTs) ( IMS Conference on ICTs, 2008). I agree with the statement of George Orwell, who said that the liberty “means the right to tell people what they do not want to hear”.

It goes without saying that all people are different and, thus, their views on the changes occurring in the surrounding world differ. However, the social progress cannot be achieved without the conflict solving and decision making. The availability of the different opinions contributes to the arriving at the best solution. The freedom of speech implies the opportunity of the unhampered expression of the opposite views.

How can we say about the liberty and personal freedom if we are afraid of protesting and arguing? The truly democratic society is the one, which encourages the independent thinking and the expression of the opposite views.

Katharine Gelber in her article ‘Freedom of Speech and Australian Political Culture’ considers the opinions of the Australian politicians, representing both the Coalition and Opposition in the beginning of the 1990s. Gelber tries to say that the history of the freedom of speech in Australia consists of the periods of the increasing public debates on the issue of human rights and their protection.

In 1992, the wide discussions contributed to the recognition of the freedom of speech in Australia (Gelber, 2011). Although the representatives of the various political parties have different views on the concept of freedom of speech, all of them indicate to its importance for the society.

Gelber says that the majority of Australians believe that the freedom of speech exists in the Australian society (Gelber, 2011). Undoubtedly, it shows that people feel their liberty in saying what the others do not want to hear.

There is a famous expression by Joshua Rozenberg, “A tweet is not an email, it’s a broadcast”. I think that he means that if the conversation includes more than two persons, it is public and it disseminates the information rapidly. In the context of the human rights, it can be said that the ‘tweet’ or wide discussions are vital for the dissemination of the information and contribute to the freedom of speech.

I agree with the statement that the social media’s worldwide audience gives individuals new rights, responsibilities, and risks. In this respect, censorship remains one of the most significant hazards. However paradoxical it looks at the first glance, the United States of America represents the bright example of the country with the freedom of speech, on the one hand, and the cases of censorship, on the other hand.

Patrick Garry in his book An American Paradox: Censorship in a Nation of Free Speech analyses the reasons for the existence of censorship in the country proclaiming the freedom of speech as one of the highest values. Garry finds the roots for this problem in the rapid dynamism of the American society.

The author also states that “as multiculturalism replaces the older, more traditional social model of Americanized homogeneity, speech and censorship will increasingly form the ethnic and cultural battleground of this change” (Garry, 1993, p. 14).

Undoubtedly, the freedom of speech is one of the most discrepant social and political issues. People’s words depend on their minds and their emotions. However, they are not always the positive ones and sometimes people are driven by hate. The history of mankind already has a lot of examples when the speech provoked the violence. The Nazi Germany is one of such examples.

The emotional speech of Adolph Hitler inspired millions of people to commit the crime against humanity. That is why it should be emphasized that the freedom of speech assumes the responsibility. It is said that “our most successful approach to defending our human rights and human dignity is to begin with the principle: Choose Love, Not Hate” ( Freedom of expression, no date).

Besides, it should be mentioned that the freedom of speech should not contradict the other human rights, including the intellectual property rights, the right to reputation, and others. The government intervention in the dissemination of the information should not go beyond the boundaries of the protection of the confidential information, reputation, public safety and order ( Freedom of expression, no date).

The debates provoked by the promulgation of the secret information by WikiLeaks shook the public. Although there were different views on the activity of the website, it is obvious that it made the confidential information public, thus, violating the right to privacy and supporting the freedom of speech.

According to Little, “there is a difference between disclosure of information relating to private lives of individuals and that relating to governments” (2013, par. 6). The European authorities support the freedom of speech but indicate to the importance of licensing of broadcasting and the verification of the information disseminated by the media ( Freedom of expression, 2007).

Connie Bennett and Rob Everett emphasize the importance of tolerance and understanding in the protection of the freedom of speech. At the same time, the authors state, “Free and open access to the universe of ideas not only enriches the lives of a country’s citizens; it protects them from the harm caused when ignorance and misinformation go unchallenged by facts” (Bennett and Everett, 2011, n.pag.).

The rapid development of the information technologies and the digital communication systems create the risks of inconsistent and false data dissemination as the role of the journalists and editors becomes vanished by the work of computers and Internet. At the same time, the modern technologies may help to overcome the bias in the information disseminated by the media.

There are a number of the social organizations aimed at protecting the freedom of speech and the activity of the journalists all over the world. In particular, Freedom House provides the support to the advocates of the human rights to defend the free media and the right to independent expression ( Freedom of expression, no date).

In order to sum up all above mentioned, it should be said that the freedom of speech is one of the main human rights. However, it remains one of the controversial social issues as well. The freedom of expression implies certain responsibilities including the respect to the privacy of other people as well as to the results of their intellectual activity.

The development of the information technologies changes the media and the communication systems. The new tendency creates both the opportunities for the facilitation of the freedom of speech and risks of the dissemination of the false information.

Annotated Bibliography

Bennett, C. and Everett, R. (2011) ‘Freedom of speech requires understanding and tolerance’, The Register Guard .

The authors touch upon the problem of the freedom of speech and the government restrictions. In particular, they emphasize the importance of the free libraries providing the opportunity to become familiar with the different opinions presented in the books.

Garry, P. (1993) An American paradox: censorship in a nation of free speech. Westport, CT: Praeger .

The book uncovers the paradox of the American society: the co-existence of the freedom of speech flourished by the public and the censorship, which restricts it. The author gives his own arguments explaining this phenomenon. In particular, he indicates to the significant changes occurring in the American society.

Gelber, K. (2011) ‘Freedom of speech and Australian political Culture’, University of Queensland Law Journal , 30(1), pp. 135-144.

The article is devoted to the recognition of the freedom of speech in Australia. It also encompasses the results of the survey aimed at investigation of the opinion of the Australians on their constitutional rights including the freedom of expression. The author presents the definitions of the freedom of speech given by the Australian politicians.

Freedom of expression.

The webpage is devoted to the freedom of expression as one of the basic human rights and describes the activity of Freedom House in its protection. The major branches of the organization’s support are mentioned on the webpage. Besides, it emphasizes the role of journalists and media in the realization of the freedom of speech.

IMS Conference on ICTs and networked communications environments: opportunities and threats for press freedom and democratization (2008).

The information presented in the source is devoted to the role of the information and communication technologies in the spreading of the freedom of speech and the facilitation of the democratic process in the different countries. It represents the report on the results of the IMS Conference. The advances in the technology and their impact on the media are discussed in the source.

Little, C. (2013) ‘Democracy depends upon free media and an informed public’, Miami Herald , 16 September.

The author of the article touches upon the controversy around the freedom of speech. She presents her own opinion on the collision of the human rights, which frequently occurs in the society. She also touches upon the activity of the much-talked-of website WikiLeaks.

Garry, P. (1993) An American paradox: censorship in a nation of free speech . Westport, CT: Praeger.

Freedom of expression (no date). Web.

Freedom of expression: a right with responsibilities (2007). Web.

IMS Conference on ICTs and networked communications environments: opportunities and threats for press freedom and democratization (2008). Web.

Little, C. (2013) ‘ Democracy depends upon free media and an informed public ‘, Miami Herald . Web.

• Chicago (A-D)
• Chicago (N-B)

IvyPanda. (2024, March 25). Freedom of Speech in Social Media Essay. https://ivypanda.com/essays/the-freedom-of-speech-in-social-media-essay/

"Freedom of Speech in Social Media Essay." IvyPanda , 25 Mar. 2024, ivypanda.com/essays/the-freedom-of-speech-in-social-media-essay/.

IvyPanda . (2024) 'Freedom of Speech in Social Media Essay'. 25 March.

IvyPanda . 2024. "Freedom of Speech in Social Media Essay." March 25, 2024. https://ivypanda.com/essays/the-freedom-of-speech-in-social-media-essay/.

1. IvyPanda . "Freedom of Speech in Social Media Essay." March 25, 2024. https://ivypanda.com/essays/the-freedom-of-speech-in-social-media-essay/.

Bibliography

IvyPanda . "Freedom of Speech in Social Media Essay." March 25, 2024. https://ivypanda.com/essays/the-freedom-of-speech-in-social-media-essay/.

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Tech & rights, ​free speech on social media: filtering methods, rights, future prospects, yes, our right to free speech absolutely exists online. but there is serious debate about how to regulate our freedom of speech in the online sphere, particularly on social media..

by LibertiesEU

Knowledge is power. Your contribution counts.

The rise of social media has implications for our fundamental rights, perhaps none more so than our freedom of speech. There is no doubt that our right to free speech extends online. But there is considerable and complex debate on how to regulate the online sphere, particularly social media. How the regulations are constructed, where the lines are drawn, will have huge implications for our freedom of speech on social media.

What does free speech mean?

Free speech means you have the freedom to express yourself in any way that does not take away the rights of other people. You can (and should) feel free to criticize the work your elected officials are doing. You should not feel free to hold band practice late into the night, because that could take away your neighbors’ right to privacy. And when they complain about the noise, you can’t encourage people to destroy their property or worse. But up to that point, you’re free to express yourself.

This is why free speech is so central to democracy. Democracy means that everyone in society makes collective decisions about the laws they live under and who administers them. The free exchange of ideas, opinions and information provide us with the knowledge we need to make those decisions. That’s also why free speech and the organs that support it, such as free media and civil society, are often the first things that disappear in autocracies.

We all deserve to have our say

But it is becoming harder to speak up about the issues we care about. Support Liberties standing up for our right to free speech.

Free speech gives us our voice

How free is speech on social media and on the internet in general.

The extent to which someone can freely express themselves online varies from country to country. In the EU, the bloc has laws that protect our freedom to express ourselves online. In some cases, the ease of online speech has allowed it to step far beyond the bounds of free speech – consider online bullying or threats, or the sharing of extremist content or child pornography. These forms of “expression” are not protected speech.

But in other areas, drawing the line is more complicated. The EU has been dealing with how to protect the rights of copyright owners against the right of people to share legal content. Should such an enormous and difficult task be farmed out to AI? Surely some of it must be, but how this is done could have profound implications for free speech.

Liberties has been adamant that compromising free speech, even putting it at potential risk, is a no-go. And that’s how it should be – if we are to err, let it be that not enough of our fundamental right to free speech was limited, and not that we gave too much of it away. That’s why we’ve advocated for users’ free speech during the EU’s work on new copyright law. And why we warned European decision-makers that their plan to regulate online terrorist content might unduly restrict free speech .

We are also mindful of the role online platforms have in determining free speech. Although we may use their services to share our thoughts, there is an obvious danger in making them arbiters of what is and is not free speech. Such decisions need to be made by independent judges, and certainly not by companies with a vested interest in making sure the content they allow and promote is good business for them.

What is important to know about free speech rights on social media?

The rise of social media has given new importance to protecting free speech. People are often able to stay anonymous when they say things – not necessarily a bad thing, especially in places where criticizing the government can put you or your family in danger. Or when you want to seek help for a private medical issue. But social media allows people to use anonymity to bully, harass, intimidate or stalk people.

Social media also gives everyone a platform. Again, this is not an inherently bad thing. It not only allows anyone to share their ideas, but connects us faster and cheaper, allowing us to exchange ideas and create things. But it also gives people the ability to easily spread disinformation that can cause harm both to individuals and society as a whole.

How do social media companies filter speech?

Social media companies can filter speech, and thus limit free speech, by using both humans and artificial intelligence to review content that might not be free to share. They can remove what you share or block you from sharing content lawfully if your content is not protected speech, for instance if you use social media to incite violence against someone. And, of course, social media companies have terms of service that have myriad more causes for sanction. (Although it can be the case that their terms of services can breach the law by limiting lawful content.)

Speaking up starts with getting informed.

Perhaps the most drastic form of social media filtering speech is by blocking some people from using their service at all. This has the effect of limiting the voices that can be heard on a platform. Some would argue that’s a good thing, and this is certainly the case when people have spread hate speech or incited violence. These issues were front and center when a certain former president of the United States was blocked from Twitter and Facebook following the attack on the U.S. Capitol.

What does the future hold for free speech on social media?

It may be a short and disappointing answer, but the truth is that we don’t know what the future holds. There seems to be a consensus that we shouldn’t allow illegal content to be shared on the internet. But it’s easier said than done. Companies, politicians and rights groups all have disagreements about how exactly to do this, and which considerations should be given more weight than others.

Regulating online speech is complicated. But if we leave it up to social media companies and their algorithms, our free speech, and thus our democracy, will suffer. They should use a fraction of their profits to create a complaints system where you can always request human review of a decision to filter content. And, if necessary, anyone should be able to go to a judge to have their case heard.

Help us fight for free speech Donate Social media platforms should not just be held accountable for leaving illegal content online. They should also bear responsibility for taking down legal content. This incentivizes them to create a review system that appropriately considers the free speech of the user. And to ensure that this remains the case, the tech industry must be properly regulated. This ensures that they can continue to grow and prosper without our rights being restricted.

But the truth is, at the moment we don’t really know how their algorithms work. We don’t really know how much material they remove or block, or for what reasons, or how they curate our news feed. To make sure they’re doing their best to protect free speech, all this information has to be available to researchers, authorities and independent watchdogs, like Liberties, who can check on them.

Value knowledge by supporting Liberties All great movements begin with sharing information. Our explainer articles help you understand the most pressing human rights issues, so together we can stand up for what matters. Support us by buying one of our activist authors a cup of coffee. Add your voice to ours. Donate today.

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6 The Golden Era of Free Speech

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Social media and the internet have significantly expanded the landscape of free expression, exponentially increasing the access that any member of the general public has to disseminate speech to a mass audience and ushering in what may be described as the golden era of free speech. Though this expansion has come with unique, unforeseen challenges that must be addressed through reform, it has also provided significant benefits that should not be sacrificed in addressing those challenges. Focusing on the importance of these advancements in free expression, this essay examines the current debate and proposals regarding Section 230 of the Communications Decency Act and analyzes why the law is effective and should be subject to only minor revisions. Although it champions the benefits of this golden era of free speech, this essay also identifies significant problems that arise with false speech and foreign speech and discusses the limitations of First Amendment doctrine in addressing these issues.

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Democracy, Social Media, and Freedom of Expression: Hate, Lies, and the Search for the Possible Truth

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This Essay is a critical reflection on the impact of the digital revolution and the internet on three topics that shape the contemporary world: democracy, social media, and freedom of expression. Part I establishes historical and conceptual assumptions about constitutional democracy and discusses the role of digital platforms in the current moment of democratic recession. Part II discusses how, while social media platforms have revolutionized interpersonal and social communication and democratized access to knowledge and information, they also have led to an exponential spread of mis- and disinformation, hate speech, and conspiracy theories. Part III proposes a framework that balances regulation of digital platforms with the countervailing fundamental right to freedom of expression, a right that is essential for human dignity, the search for the possible truth, and democracy. Part IV highlights the role of society and the importance of media education in the creation of a free, but positive and constructive, environment on the internet.

I. Introduction

Before the internet, few actors could afford to participate in public debate due to the barriers that limited access to its enabling infrastructure, such as television channels and radio frequencies. 1 Digital platforms tore down this gate by creating open online communities for user-generated content, published without editorial control and at no cost. This exponentially increased participation in public discourse and the amount of information available. 2 At the same time, it led to an increase in disinformation campaigns, hate speech, slander, lies, and conspiracy theories used to advance antidemocratic goals. Platforms’ attempts to moderate speech at scale while maximizing engagement and profits have led to an increasingly prominent role for content moderation algorithms that shape who can participate and be heard in online public discourse. These systems play an essential role in the exercise of freedom of expression and in democratic competence and participation in the 21st century.

In this context, this Essay is a critical reflection on the impacts of the digital revolution and of the internet on democracy and freedom of expression. Part I establishes historical and conceptual assumptions about constitutional democracy; it also discusses the role of digital platforms in the current moment of democratic recession. Part II discusses how social media platforms are revolutionizing interpersonal and social communication, and democratizing access to knowledge and information, but also lead to an exponential spread of mis- and disinformation, hate speech and conspiracy theories. Part III proposes a framework for the regulation of digital platforms that seeks to find the right balance with the countervailing fundamental right to freedom of expression. Part IV highlights the role of society and the importance of media education in the creation of a free, but positive and constructive, environment on the internet.

II. Democracy and Authoritarian Populism

Constitutional democracy emerged as the predominant ideology of the 20th century, rising above the alternative projects of communism, fascism, Nazism, military regimes, and religious fundamentalism . 3 Democratic constitutionalism centers around two major ideas that merged at the end of the 20th century: constitutionalism , heir of the liberal revolutions in England, America, and France, expressing the ideas of limited power, rule of law, and respect for fundamental rights; 4 and democracy , a regime of popular sovereignty, free and fair elections, and majority rule. 5 In most countries, democracy only truly consolidated throughout the 20th century through universal suffrage guaranteed with the end of restrictions on political participation based on wealth, education, sex, or race. 6

Contemporary democracies are made up of votes, rights, and reasons. They are not limited to fair procedural rules in the electoral process, but demand respect for substantive fundamental rights of all citizens and a permanent public debate that informs and legitimizes political decisions. 7 To ensure protection of these three aspects, most democratic regimes include in their constitutional framework a supreme court or constitutional court with jurisdiction to arbitrate the inevitable tensions that arise between democracy’s popular sovereignty and constitutionalism’s fundamental rights. 8 These courts are, ultimately, the institutions responsible for protecting fundamental rights and the rules of the democratic game against any abuse of power attempted by the majority. Recent experiences in Hungary, Poland, Turkey, Venezuela, and Nicaragua show that when courts fail to fulfill this role, democracy collapses or suffers major setbacks. 9

In recent years, several events have challenged the prevalence of democratic constitutionalism in many parts of the world, in a phenomenon characterized by many as democratic recession. 10 Even consolidated democracies have endured moments of turmoil and institutional discredit, 11 as the world witnessed the rise of an authoritarian, anti-pluralist, and anti-institutional populist wave posing serious threats to democracy.

Populism can be right-wing or left-wing, 12 but the recent wave has been characterized by the prevalence of right-wing extremism, often racist, xenophobic, misogynistic, and homophobic. 13 While in the past the far left was united through Communist International, today it is the far right that has a major global network. 14 The hallmark of right-wing populism is the division of society into “us” (the pure, decent, conservatives) and “them” (the corrupt, liberal, cosmopolitan elites). 15 Authoritarian populism flows from the unfulfilled promises of democracy for opportunities and prosperity for all. 16 Three aspects undergird this democratic frustration: political (people do not feel represented by the existing electoral systems, political leaders, and democratic institutions); social (stagnation, unemployment, and the rise of inequality); and cultural identity (a conservative reaction to the progressive identity agenda of human rights that prevailed in recent decades with the protection of the fundamental rights of women, African descendants, religious minorities, LGBTQ+ communities, indigenous populations, and the environment). 17

Extremist authoritarian populist regimes often adopt similar strategies to capitalize on the political, social, and cultural identity-based frustrations fueling democratic recessions. These tactics include by-pass or co-optation of the intermediary institutions that mediate the interface between the people and the government, such as the legislature, the press, and civil society. They also involve attacks on supreme courts and constitutional courts and attempts to capture them by appointing submissive judges. 18 The rise of social media potentializes these strategies by creating a free and instantaneous channel of direct communication between populists and their supporters. 19 This unmediated interaction facilitates the use of disinformation campaigns, hate speech, slander, lies, and conspiracy theories as political tools to advance antidemocratic goals. The instantaneous nature of these channels is ripe for impulsive reactions, which facilitate verbal attacks by supporters and polarization, feeding back into the populist discourse. These tactics threaten democracy and free and fair elections because they deceive voters and silence the opposition, distorting public debate. Ultimately, this form of communication undermines the values that justify the special protection of freedom of expression to begin with. The “truth decay” and “fact polarization” that result from these efforts discredit institutions and consequently foster distrust in democracy. 20

III. Internet, Social Media, and Freedom of Expression 21

The third industrial revolution, also known as the technological or digital revolution, has shaped our world today. 22 Some of its main features are the massification of personal computers, the universalization of smartphones and, most importantly, the internet. One of the main byproducts of the digital revolution and the internet was the emergence of social media platforms such as Facebook, Instagram, YouTube, TikTok and messaging applications like WhatsApp and Telegram. We live in a world of apps, algorithms, artificial intelligence, and innovation occurring at breakneck speed where nothing seems truly new for very long. This is the background for the narrative that follows.

A. The Impact of the Internet

The internet revolutionized the world of interpersonal and social communication, exponentially expanded access to information and knowledge, and created a public sphere where anyone can express ideas, opinions, and disseminate facts. 23 Before the internet, one’s participation in public debate was dependent upon the professional press, 24 which investigated facts, abided by standards of journalistic ethics, 25 and was liable for damages if it knowingly or recklessly published untruthful information. 26 There was a baseline of editorial control and civil liability over the quality and veracity of what was published in this medium. This does not mean that it was a perfect world. The number of media outlets was, and continues to be, limited in quantity and perspectives; journalistic companies have their own interests, and not all of them distinguish fact from opinion with the necessary care. Still, there was some degree of control over what became public, and there were costs to the publication of overtly hateful or false speech.

The internet, with the emergence of websites, personal blogs, and social media, revolutionized this status quo. It created open, online communities for user-generated texts, images, videos, and links, published without editorial control and at no cost. This advanced participation in public discourse, diversified sources, and exponentially increased available information. 27 It gave a voice to minorities, civil society, politicians, public agents, and digital influencers, and it allowed demands for equality and democracy to acquire global dimensions. This represented a powerful contribution to political dynamism, resistance to authoritarianism, and stimulation of creativity, scientific knowledge, and commercial exchanges. 28 Increasingly, the most relevant political, social, and cultural communications take place on the internet’s unofficial channels.

However, the rise of social media also led to an increase in the dissemination of abusive and criminal speech. 29 While these platforms did not create mis- or disinformation, hate speech, or speech that attacks democracy, the ability to publish freely, with no editorial control and little to no accountability, increased the prevalence of these types of speech and facilitated its use as a political tool by populist leaders. 30 Additionally, and more fundamentally, platform business models compounded the problem through algorithms that moderate and distribute online content. 31

B. The Role of Algorithms

The ability to participate and be heard in online public discourse is currently defined by the content moderation algorithms of a couple major technology companies. Although digital platforms initially presented themselves as neutral media where users could publish freely, they in fact exercise legislative, executive, and judicial functions because they unilaterally define speech rules in their terms and conditions and their algorithms decide how content is distributed and how these rules are applied. 32

Specifically, digital platforms rely on algorithms for two different functions: recommending content and moderating content. 33 First, a fundamental aspect of the service they offer involves curating the content available to provide each user with a personalized experience and increase time spent online. They resort to deep learning algorithms that monitor every action on the platform, draw from user data, and predict what content will keep a specific user engaged and active based on their prior activity or that of similar users. 34 The transition from a world of information scarcity to a world of information abundance generated fierce competition for user attention—the most valuable resource in the Digital Age. 35 The power to modify a person’s information environment has a direct impact on their behavior and beliefs. Because AI systems can track an individual’s online history, they can tailor specific messages to maximize impact. More importantly, they monitor whether and how the user interacts with the tailored message, using this feedback to influence future content targeting and progressively becoming more effective in shaping behavior. 36 Given that humans engage more with content that is polarizing and provocative, these algorithms elicit powerful emotions, including anger. 37 The power to organize online content therefore directly impacts freedom of expression, pluralism, and democracy. 38

In addition to recommendation systems, platforms rely on algorithms for content moderation, the process of classifying content to determine whether it violates community standards. 39 As mentioned, the growth of social media and its use by people around the world allowed for the spread of lies and criminal acts with little cost and almost no accountability, threatening the stability of even long-standing democracies. Inevitably, digital platforms had to enforce terms and conditions defining the norms of their digital community and moderate speech accordingly. 40 But the potentially infinite amount of content published online means that this control cannot be exercised exclusively by humans.

Content moderation algorithms optimize the scanning of published content to identify violations of community standards or terms of service at scale and apply measures ranging from removal to reducing reach or including clarifications or references to alternative information. Platforms often rely on two algorithmic models for content moderation. The first is the reproduction detection model , which uses unique identifiers to catch reproductions of content previously labeled as undesired. 41 The second system, the predictive model , uses machine learning techniques to identify potential illegalities in new and unclassified content. 42 Machine learning is a subtype of artificial intelligence that extracts patterns in training datasets, capable of learning from data without explicit programming to do so. 43 Although helpful, both models have shortcomings.

The reproduction detection model is inefficient for content such as hate speech and disinformation, where the potential for new and different publications is virtually unlimited and users can deliberately make changes to avoid detection. 44 The predictive model is still limited in its ability to address situations to which it has not been exposed in training, primarily because it lacks the human ability to understand nuance and to factor in contextual considerations that influence the meaning of speech. 45 Additionally, machine learning algorithms rely on data collected from the real world and may embed prejudices or preconceptions, leading to asymmetrical applications of the filter. 46 And because the training data sets are so large, it can be hard to audit them for these biases. 47

Despite these limitations, algorithms will continue to be a crucial resource in content moderation given the scale of online activities. 48 In the last two months of 2020 alone, Facebook applied a content moderation measure to 105 million publications, and Instagram to 35 million. 49 YouTube has 500 hours of video uploaded per minute and removed more than 9.3 million videos. 50 In the first half of 2020, Twitter analyzed complaints related to 12.4 million accounts for potential violations of its rules and took action against 1.9 million. 51 This data supports the claim that human moderation is impossible, and that algorithms are a necessary tool to reduce the spread of illicit and harmful content. On the one hand, holding platforms accountable for occasional errors in these systems would create wrong incentives to abandon algorithms in content moderation with the negative consequence of significantly increasing the spread of undesired speech. 52 On the other hand, broad demands for platforms to implement algorithms to optimize content moderation, or laws that impose very short deadlines to respond to removal requests submitted by users, can create excessive pressure for the use of these imprecise systems on a larger scale. Acknowledging the limitations of this technology is fundamental for precise regulation.

C. Some Undesirable Consequences

One of the most striking impacts of this new informational environment is the exponential increase in the scale of social communications and the circulation of news. Around the world, few newspapers, print publications, and radio stations cross the threshold of having even one million subscribers and listeners. This suggests the majority of these publications have a much smaller audience, possibly in the thousands or tens of thousands of people. 53 Television reaches millions of viewers, although diluted among dozens or hundreds of channels. 54 Facebook, on the other hand, has about 3 billion active users. 55 YouTube has 2.5 billion accounts. 56 WhatsApp, more than 2 billion. 57 The numbers are bewildering. However, and as anticipated, just as the digital revolution democratized access to knowledge, information, and public space, it also introduced negative consequences for democracy that must be addressed. Three of them include:

a) the increased circulation of disinformation, deliberate lying, hate speech, conspiracy theories, attacks on democracy, and inauthentic behavior, made possible by recommendation algorithms that optimize for user engagement and content moderation algorithms that are still incapable of adequately identifying undesirable content;

b) the tribalization of life, with the formation of echo chambers where groups speak only to themselves, reinforcing confirmation bias, 58 making speech progressively more radical, and contributing to polarization and intolerance; and

c) a global crisis in the business model of the professional press. Although social media platforms have become one of the main sources of information, they do not produce their own content. They hire engineers, not reporters, and their interest is engagement, not news. 59 Because advertisers’ spending has migrated away from traditional news publications to technological platforms with broader reaches, the press has suffered from a lack of revenue which has forced hundreds of major publications, national and local, to close their doors or reduce their journalist workforce. 60 But a free and strong press is more than just a private business; it is a pillar for an open and free society. It serves a public interest in the dissemination of facts, news, opinions, and ideas, indispensable preconditions for the informed exercise of citizenship. Knowledge and truth—never absolute, but sincerely sought—are essential elements for the functioning of a constitutional democracy. Citizens need to share a minimum set of common objective facts from which to inform their own judgments. If they cannot accept the same facts, public debate becomes impossible. Intolerance and violence are byproducts of the inability to communicate—hence the importance of “knowledge institutions,” such as universities, research entities, and the institutional press. The value of free press for democracy is illustrated by the fact that in different parts of the world, the press is one of the only private businesses specifically referred to throughout constitutions. Despite its importance for society and democracy, surveys reveal a concerning decline in its prestige. 61

In the beginning of the digital revolution, there was a belief that the internet should be a free, open, and unregulated space in the interest of protecting access to the platform and promoting freedom of expression. Over time, concerns emerged, and a consensus gradually grew for the need for internet regulation. Multiple approaches for regulating the internet were proposed, including: (a) economic, through antitrust legislation, consumer protection, fair taxation, and copyright rules; (b) privacy, through laws restricting collection of user data without consent, especially for content targeting; and (c) targeting inauthentic behavior, content control, and platform liability rules. 62

Devising the proper balance between the indispensable preservation of freedom of expression on the one hand, and the repression of illegal content on social media on the other, is one of the most complex issues of our generation. Freedom of expression is a fundamental right incorporated into virtually all contemporary constitutions and, in many countries, is considered a preferential freedom. Several reasons have been advanced for granting freedom of expression special protection, including its roles: (a) in the search for the possible truth 63 in an open and plural society, 64 as explored above in discussing the importance of the institutional press; (b) as an essential element for democracy 65 because it allows the free circulation of ideas, information, and opinions that inform public opinion and voting; and (c) as an essential element of human dignity, 66 allowing the expression of an individual’s personality.

The regulation of digital platforms cannot undermine these values but must instead aim at its protection and strengthening. However, in the digital age, these same values that historically justified the reinforced protection of freedom of expression can now justify its regulation. As U.N. Secretary-General António Guterres thoughtfully stated, “the ability to cause large-scale disinformation and undermine scientifically established facts is an existential risk to humanity.” 67

Two aspects of the internet business model are particularly problematic for the protection of democracy and free expression. The first is that, although access to most technological platforms and applications is free, users pay for access with their privacy. 68 As Lawrence Lessig observed, we watch television, but the internet watches us. 69 Everything each individual does online is monitored and monetized. Data is the modern gold. 70 Thus, those who pay for the data can more efficiently disseminate their message through targeted ads. As previously mentioned, the power to modify a person’s information environment has a direct impact on behavior and beliefs, especially when messages are tailored to maximize impact on a specific individual. 71

The second aspect is that algorithms are programmed to maximize time spent online. This often leads to the amplification of provocative, radical, and aggressive content. This in turn compromises freedom of expression because, by targeting engagement, algorithms sacrifice the search for truth (with the wide circulation of fake news), democracy (with attacks on institutions and defense of coups and authoritarianism), and human dignity (with offenses, threats, racism, and others). The pursuit of attention and engagement for revenue is not always compatible with the values that underlie the protection of freedom of expression.

IV. A Framework for the Regulation of Social Media

Platform regulation models can be broadly classified into three categories: (a) state or government regulation, through legislation and rules drawing a compulsory, encompassing framework; (b) self-regulation, through rules drafted by platforms themselves and materialized in their terms of use; and (c) regulated self-regulation or coregulation, through standards fixed by the state but which grant platform flexibility in materializing and implementing them. This Essay argues for the third model, with a combination of governmental and private responsibilities. Compliance should be overseen by an independent committee, with the minority of its representatives coming from the government, and the majority coming from the business sector, academia, technology entities, users, and civil society.

The regulatory framework should aim to reduce the asymmetry of information between platforms and users, safeguard the fundamental right to freedom of expression from undue private or state interventions, and protect and strengthen democracy. The current technical limitations of content moderation algorithms explored above and normal substantive disagreement about what content should be considered illegal or harmful suggest that an ideal regulatory model should optimize the balance between the fundamental rights of users and platforms, recognizing that there will always be cases where consensus is unachievable. The focus of regulation should be the development of adequate procedures for content moderation, capable of minimizing errors and legitimizing decisions even when one disagrees with the substantive result. 72 With these premises as background, the proposal for regulation formulated here is divided into three levels: (a) the appropriate intermediary liability model for user-generated content; (b) procedural duties for content moderation; and (c) minimum duties to moderate content that represents concrete threats to democracy and/or freedom of expression itself.

A. Intermediary Liability for User-Generated Content

There are three main regimes for platform liability for third-party content. In strict liability models, platforms are held responsible for all user-generated posts. 73 Since platforms have limited editorial control over what is posted and limited human oversight over the millions of posts made daily, this would be a potentially destructive regime. In knowledge-based liability models, platform liability arises if they do not act to remove content after an extrajudicial request from users—this is also known as a “notice-and-takedown” system. 74 Finally, a third model would make platforms liable for user-generated content only in cases of noncompliance with a court order mandating content removal. This latter model was adopted in Brazil with the Civil Framework for the Internet (Marco Civil da Internet). 75 The only exception in Brazilian legislation to this general rule is revenge porn: if there is a violation of intimacy resulting from the nonconsensual disclosure of images, videos, or other materials containing private nudity or private sexual acts, extrajudicial notification is sufficient to create an obligation for content removal under penalty of liability. 76

In our view, the Brazilian model is the one that most adequately balances the fundamental rights involved. As mentioned, in the most complex cases concerning freedom of expression, people will disagree on the legality of speech. Rules holding platforms accountable for not removing content after mere user notification create incentives for over-removal of any potentially controversial content, excessively restricting users’ freedom of expression. If the state threatens to hold digital platforms accountable if it disagrees with their assessment, companies will have the incentive to remove all content that could potentially be considered illicit by courts to avoid liability. 77

Nonetheless, this liability regime should coexist with a broader regulatory structure imposing principles, limits, and duties on content moderation by digital platforms, both to increase the legitimacy of platforms’ application of their own terms and conditions and to minimize the potentially devastating impacts of illicit or harmful speech.

B. Standards for Proactive Content Moderation

Platforms have free enterprise and freedom of expression rights to set their own rules and decide the kind of environment they want to create, as well as to moderate harmful content that could drive users away. However, because these content moderation algorithms are the new governors of the public sphere, 78 and because they define the ability to participate and be heard in online public discourse, platforms should abide by minimum procedural duties of transparency and auditing, due process, and fairness.

1. Transparency and Auditing

Transparency and auditing measures serve mainly to ensure that platforms are accountable for content moderation decisions and for the impacts of their algorithms. They provide users with greater understanding and knowledge about the extent to which platforms regulate speech, and they provide oversight bodies and researchers with information to understand the threats of digital services and the role of platforms in amplifying or minimizing them.

Driven by demands from civil society, several digital platforms already publish transparency reports. 79 However, the lack of binding standards means that these reports have significant gaps, no independent verification of the information provided, 80 and no standardization across platforms, preventing comparative analysis. 81 In this context, regulatory initiatives that impose minimum requirements and standards are crucial to make oversight more effective. On the other hand, overly broad transparency mandates may force platforms to adopt simpler content moderation rules to reduce costs, which could negatively impact the accuracy of content moderation or the quality of the user experience. 82 A tiered approach to transparency, where certain information is public and certain information is limited to oversight bodies or previously qualified researchers, ensures adequate protection of countervailing interests, such as user privacy and business confidentiality. 83 The Digital Services Act, 84 recently passed in the European Union, contains robust transparency provisions that generally align with these considerations. 85

The information that should be publicly provided includes clear and unambiguous terms of use, the options available to address violations (such as removal, amplification reduction, clarifications, and account suspension) and the division of labor between algorithms and humans. More importantly, public transparency reports should include information on the accuracy of automated moderation measures and the number of content moderation actions broken down by type (such as removal, blocking, and account deletion). 86 There must also be transparency obligations to researchers, giving them access to crucial information and statistics, including to the content analyzed for the content moderation decisions. 87

Although valuable, transparency requirements are insufficient in promoting accountability because they rely on users and researchers to actively monitor platform conduct and presuppose that they have the power to draw attention to flaws and promote changes. 88 Legally mandated third-party algorithmic auditing is therefore an important complement to ensure that these models satisfy legal, ethical, and safety standards and to elucidate the embedded value tradeoffs, such as between user safety and freedom of expression. 89 As a starting point, algorithm audits should consider matters such as how accurately they perform, any potential bias or discrimination incorporated in the data, and to what extent the internal mechanics are explainable to humans. 90 The Digital Services Act contains a similar proposal. 91

The market for algorithmic auditing is still emergent and replete with uncertainty. In attempting to navigate this scenario, regulators should: (a) define how often the audits should happen; (b) develop standards and best practices for auditing procedures; (c) mandate specific disclosure obligations so auditors have access to the required data; and (d) define how identified harms should be addressed. 92

2. Due Process and Fairness

To ensure due process, platforms must inform users affected by content moderation decisions of the allegedly violated provision of the terms of use, as well as offer an internal system of appeals against these decisions. Platforms must also create systems that allow for the substantiated denunciation of content or accounts by other users, and notify reporting users of the decision taken.

As for fairness, platforms should ensure that the rules are applied equally to all users. Although it is reasonable to suppose that platforms may adopt different criteria for public persons or information of public interest, these exceptions must be clear in the terms of use. This issue has recently been the subject of controversy between the Facebook Oversight Board and the company. 93

Due to the enormous amount of content published on the platforms and the inevitability of using automated mechanisms for content moderation, platforms should not be held accountable for a violation of these duties in specific cases, but only when the analysis reveals a systemic failure to comply. 94

C. Minimum Duties to Moderate Illicit Content

The regulatory framework should also contain specific obligations to address certain types of especially harmful speech. The following categories are considered by the authors to fall within this group: disinformation, hate speech, anti-democratic attacks, cyberbullying, terrorism, and child pornography. Admittedly, defining and consensually identifying the speech included in these categories—except in the case of child pornography 95 —is a complex and largely subjective task. Precisely for this reason, platforms should be free to define how the concepts will be operationalized, as long as they guide definitions by international human rights parameters and in a transparent manner. This does not mean that all platforms will reach the same definitions nor the same substantive results in concrete cases, but this should not be considered a flaw in the system, since the plurality of rules promotes freedom of expression. The obligation to observe international human rights parameters reduces the discretion of companies, while allowing for the diversity of policies among them. After defining these categories, platforms must establish mechanisms that allow users to report violations.

In addition, platforms should develop mechanisms to address coordinated inauthentic behaviors, which involve the use of automated systems or deceitful means to artificially amplify false or dangerous messages by using bots, fake profiles, trolls, and provocateurs. 96 For example, if a person publishes a post for his twenty followers saying that kerosene oil is good for curing COVID-19, the negative impact of this misinformation is limited. However, if that message is amplified to thousands of users, a greater public health issue arises. Or, in another example, if the false message that an election was rigged reaches millions of people, there is a democratic risk due to the loss of institutional credibility.

The role of oversight bodies should be to verify that platforms have adopted terms of use that prohibit the sharing of these categories of speech and ensure that, systemically, the recommendation and content moderation systems are trained to moderate this content.

V. Conclusion

The World Wide Web has provided billions of people with access to knowledge, information, and the public space, changing the course of history. However, the misuse of the internet and social media poses serious threats to democracy and fundamental rights. Some degree of regulation has become necessary to confront inauthentic behavior and illegitimate content. It is essential, however, to act with transparency, proportionality, and adequate procedures, so that pluralism, diversity, and freedom of expression are preserved.

In addition to the importance of regulatory action, the responsibility for the preservation of the internet as a healthy public sphere also lies with citizens. Media education and user awareness are fundamental steps for the creation of a free but positive and constructive environment on the internet. Citizens should be conscious that social media can be unfair, perverse, and can violate fundamental rights and basic rules of democracy. They must be attentive not to uncritically pass on all information received. Alongside states, regulators, and tech companies, citizens are also an important force to address these threats. In Jonathan Haidt’s words, “[w]hen our public square is governed by mob dynamics unrestrained by due process, we don’t get justice and inclusion; we get a society that ignores context, proportionality, mercy, and truth.” 97

• 1 Tim Wu, Is the First Amendment Obsolete? , in The Perilous Public Square 15 (David E. Pozen ed., 2020).
• 2 Jack M. Balkin, Free Speech is a Triangle , 118 Colum. L. Rev. 2011, 2019 (2018).
• 3 Luís Roberto Barroso, O Constitucionalismo Democrático ou Neoconstitucionalismo como ideologia vitoriosa do século XX , 4 Revista Publicum 14, 14 (2018).
• 4 Id. at 16.
• 7 Ronald Dworkin, Is Democracy Possible Here?: Principles for a New Political Debate xii (2006); Ronald Dworkin, Taking Rights Seriously 181 (1977).
• 8 Barroso, supra note 3, at 16.
• 9 Samuel Issacharoff, Fragile Democracies: Contested Power in the Era of Constitutional Courts i (2015).
• 10 Larry Diamond, Facing up to the Democratic Recession , 26 J. Democracy 141 (2015). Other scholars have referred to the same phenomenon using other terms, such as democratic retrogression, abusive constitutionalism, competitive authoritarianism, illiberal democracy, and autocratic legalism. See, e.g. , Aziz Huq & Tom Ginsburg, How to Lose a Constitutional Democracy , 65 UCLA L. Rev. 91 (2018); David Landau, Abusive Constitutionalism , 47 U.C. Davis L. Rev. 189 (2013); Kim Lane Scheppele, Autocratic Legalism , 85 U. Chi. L. Rev. 545 (2018).
• 11 Dan Balz, A Year After Jan. 6, Are the Guardrails that Protect Democracy Real or Illusory? , Wash. Post (Jan. 6, 2022), https://perma.cc/633Z-A9AJ; Brexit: Reaction from Around the UK , BBC News (June 24, 2016), https://perma.cc/JHM3-WD7A.
• 12 Cas Mudde, The Populist Zeitgeist , 39 Gov’t & Opposition 541, 549 (2004).
• 13 See generally Mohammed Sinan Siyech, An Introduction to Right-Wing Extremism in India , 33 New Eng. J. Pub. Pol’y 1 (2021) (discussing right-wing extremism in India). See also Eviane Leidig, Hindutva as a Variant of Right-Wing Extremism , 54 Patterns of Prejudice 215 (2020) (tracing the history of “Hindutva”—defined as “an ideology that encompasses a wide range of forms, from violent, paramilitary fringe groups, to organizations that advocate the restoration of Hindu ‘culture’, to mainstream political parties”—and finding that it has become mainstream since 2014 under Modi); Ariel Goldstein, Brazil Leads the Third Wave of the Latin American Far Right , Ctr. for Rsch. on Extremism (Mar. 1, 2021), https://perma.cc/4PCT-NLQJ (discussing right-wing extremism in Brazil under Bolsonaro); Seth G. Jones, The Rise of Far-Right Extremism in the United States , Ctr. for Strategic & Int’l Stud. (Nov. 2018), https://perma.cc/983S-JUA7 (discussing right-wing extremism in the U.S. under Trump).
• 14 Sergio Fausto, O Desafio Democrático [The Democratic Challenge], Piauí (Aug. 2022), https://perma.cc/474A-3849.
• 15 Jan-Werner Muller, Populism and Constitutionalism , in The Oxford Handbook of Populism 590 (Cristóbal Rovira Kaltwasser et al. eds., 2017).
• 16 Ming-Sung Kuo, Against Instantaneous Democracy , 17 Int’l J. Const. L. 554, 558–59 (2019); see also Digital Populism , Eur. Ctr. for Populism Stud., https://perma.cc/D7EV-48MV.
• 17 Luís Roberto Barroso, Technological Revolution, Democratic Recession and Climate Change: The Limits of Law in a Changing World , 18 Int’l J. Const. L. 334, 349 (2020).
• 18 For the use of social media, see Sven Engesser et al., Populism and Social Media: How Politicians Spread a Fragmented Ideology , 20 Info. Commc’n & Soc’y 1109 (2017). For attacks on the press, see WPFD 2021: Attacks on Press Freedom Growing Bolder Amid Rising Authoritarianism , Int’l Press Inst. (Apr. 30, 2021), https://perma.cc/SGN9-55A8. For attacks on the judiciary, see Michael Dichio & Igor Logvinenko, Authoritarian Populism, Courts and Democratic Erosion , Just Sec. (Feb. 11, 2021), https://perma.cc/WZ6J-YG49.
• 19 Kuo, supra note 16, at 558–59; see also Digital Populism , supra note 16.
• 20 Vicki C. Jackson, Knowledge Institutions in Constitutional Democracy: Reflections on “the Press” , 15 J. Media L. 275 (2022).
• 21 Many of the ideas and information on this topic were collected in Luna van Brussel Barroso, Liberdade de Expressão e Democracia na Era Digital: O impacto das mídias sociais no mundo contemporâneo [Freedom of Expression and Democracy in the Digital Era: The Impact of Social Media in the Contemporary World] (2022), which was recently published in Brazil.
• 22 The first industrial revolution is marked by the use of steam as a source of energy in the middle of the 18th century. The second started with the use of electricity and the invention of the internal combustion engine at the turn of the 19th to the 20th century. There are already talks of the fourth industrial revolution as a product of the fusion of technologies that blurs the boundaries among the physical, digital, and biological spheres. See generally Klaus Schwab, The Fourth Industrial Revolution (2017).
• 23 Gregory P. Magarian, The Internet and Social Media , in The Oxford Handbook of Freedom of Speech 350, 351–52 (Adrienne Stone & Frederick Schauer eds., 2021).
• 24 Wu, supra note 1, at 15.
• 25 Journalistic ethics include distinguishing fact from opinion, verifying the veracity of what is published, having no self-interest in the matter being reported, listening to the other side, and rectifying mistakes. For an example of an international journalistic ethics charter, see Global Charter of Ethics for Journalists , Int’l Fed’n of Journalists (June 12, 2019), https://perma.cc/7A2C-JD2S.
• 26 See, e.g. , New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
• 27 Balkin, supra note 2, at 2018.
• 28 Magarian, supra note 23, at 351–52.
• 29 Wu, supra note 1, at 15.
• 30 Magarian, supra note 23, at 357–60.
• 31 Niva Elkin-Koren & Maayan Perel, Speech Contestation by Design: Democratizing Speech Governance by AI , 50 Fla. State U. L. Rev. (forthcoming 2023).
• 32 Thomas E. Kadri & Kate Klonick, Facebook v. Sullivan: Public Figures and Newsworthiness in Online Speech , 93 S. Cal. L. Rev. 37, 94 (2019).
• 33 Elkin-Koren & Perel, supra note 31.
• 34 Chris Meserole, How Do Recommender Systems Work on Digital Platforms? , Brookings Inst.(Sept. 21, 2022), https://perma.cc/H53K-SENM.
• 35 Kris Shaffer, Data versus Democracy: How Big Data Algorithms Shape Opinions and Alter the Course of History xi–xv (2019).
• 36 See generally Stuart Russell, Human Compatible: Artificial Intelligence and the Problem of Control (2019).
• 37 Shaffer, supra note 35, at xi–xv.
• 38 More recently, with the advance of neuroscience, platforms have sharpened their ability to manipulate and change our emotions, feelings and, consequently, our behavior in accordance not with our own interests, but with theirs (or of those who they sell this service to). Kaveh Waddell, Advertisers Want to Mine Your Brain , Axios (June 4, 2019), https://perma.cc/EU85-85WX. In this context, there is already talk of a new fundamental right to cognitive liberty, mental self-determination, or the right to free will. Id .
• 39 Content moderation refers to “systems that classify user generated content based on either matching or prediction, leading to a decision and governance outcome (e.g. removal, geoblocking, account takedown).” Robert Gorwa, Reuben Binns & Christian Katzenbach, Algorithmic Content Moderation: Technical and Political Challenges in the Automation of Platform Governance , 7 Big Data & Soc’y 1, 3 (2020).
• 40 Jack M. Balkin, Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation , 51 U.C. Davis L. Rev. 1149, 1183 (2018).
• 41 See Carey Shenkman, Dhanaraj Thakur & Emma Llansó, Do You See What I See? Capabilities and Limits of Automated Multimedia Content Analysis 13–16 (May 2021),https://perma.cc/J9MP-7PQ8.
• 42 See id. at 17–21.
• 43 See Michael Wooldridge, A Brief History of Artificial Intelligence: What It Is, Where We Are, and Where We Are Going 63 (2021).

Perceptual hashing has been the primary technology utilized to mitigate the spread of CSAM, since the same materials are often repeatedly shared, and databases of offending content are maintained by institutions like the National Center for Missing and Exploited Children (NCMEC) and its international analogue, the International Centre for Missing & Exploited Children (ICMEC).

• 45 Natural language understanding is undermined by language ambiguity, contextual dependence of words of non-immediate proximity, references, metaphors, and general semantics rules. See Erik J. Larson, The Myth of Artificial Intelligence: Why Computers Can’t Think the Way We Do 52–55 (2021). Language comprehension in fact requires unlimited common-sense knowledge about the actual world, which humans possess and is impossible to code. Id . A case decided by Facebook’s Oversight Board illustrates the point: the company’s predictive filter for combatting pornography removed images from a breast cancer awareness campaign, a clearly legitimate content not meant to be targeted by the algorithm. See Breast Cancer Symptoms and Nudity , Oversight Bd. (2020), https://perma.cc/U9A5-TTTJ. However, based on prior training, the algorithm removed the publication because it detected pornography and was unable to factor the contextual consideration that this was a legitimate health campaign. Id .
• 46 See generally Adriano Koshiyama, Emre Kazim & Philip Treleaven, Algorithm Auditing: Managing the Legal, Ethical, and Technological Risks of Artificial Intelligence, Machine Learning, and Associated Algorithms , 55 Computer 40 (2022).
• 47 Elkin-Koren & Perel, supra note 31.
• 48 Evelyn Douek, Governing Online Speech: From “Posts-as-Trumps” to Proportionality and Probability , 121 Colum. L. Rev. 759, 791 (2021).
• 53 See Martha Minow, Saving the Press: Why the Constitution Calls for Government Action to Preserve Freedom of Speech 20 (2021). For example, the best-selling newspaper in the world, The New York Times , ended the year 2022 with around 10 million subscribers across digital and print. Katie Robertson, The New York Times Company Adds 180,000 Digital Subscribers , N.Y. Times (Nov. 2, 2022), https://perma.cc/93PF-TKC5. The Economist magazine had approximately 1.2 million subscribers in 2022. The Economist Group, Annual Report 2022 24 (2022), https://perma.cc/9HQQ-F7W2. Around the world, publications that reach one million subscribers are rare. These Are the Most Popular Paid Subscription News Websites , World Econ. F. (Apr. 29, 2021), https://perma.cc/L2MK-VPNX.
• 54 Lawrence Lessig, They Don’t Represent Us: Reclaiming Our Democracy 105 (2019).
• 55 Essential Facebook Statistics and Trends for 2023 , Datareportal (Feb. 19, 2023), https://perma.cc/UH33-JHUQ.
• 56 YouTube User Statistics 2023 , Glob. Media Insight (Feb. 27, 2023), https://perma.cc/3H4Y-H83V.
• 57 Brian Dean, WhatsApp 2022 User Statistics: How Many People Use WhatsApp , Backlinko (Jan. 5, 2022), https://perma.cc/S8JX-S7HN.
• 58 Confirmation bias, the tendency to seek out and favor information that reinforces one’s existing beliefs, presents an obstacle to critical thinking. Sachin Modgil et al., A Confirmation Bias View on Social Media Induced Polarisation During COVID-19 , Info. Sys. Frontiers (Nov. 20, 2021).
• 59 Minow, supra note 53, at 2.
• 60 Id. at 3, 11.
• 61 On the importance of the role of the press as an institution of public interest and its “crucial relationship” with democracy, see id. at 35. On the press as a “knowledge institution,” the idea of “institutional press,” and data on the loss of prestige by newspapers and television stations, see Jackson, supra note 20, at 4–5.
• 62 See , e.g. , Jack M. Balkin, How to Regulate (and Not Regulate) Social Media , 1 J. Free Speech L. 71, 89–96 (2021).
• 63 By possible truth we mean that not all claims, opinions and beliefs can be ascertained as true or false. Objective truths are factual and can thus be proven even when controversial—for example, climate change and the effectiveness of vaccines. Subjective truths, on the other hand, derive from individual normative, religious, philosophical, and political views. In a pluralistic world, any conception of freedom of expression must protect individual subjective beliefs.
• 64 Eugene Volokh, In Defense of the Marketplace of Ideas/Search for Truth as a Theory of Free Speech Protection , 97 Va. L. Rev. 595, 595 (May 2011).
• 66 Steven J. Heyman, Free Speech and Human Dignity 2 (2008).
• 67 A Global Dialogue to Guide Regulation Worldwide , UNESCO (Feb. 23, 2023), https://perma.cc/ALK8-HTG3.
• 68 Can We Fix What’s Wrong with Social Media? , Yale L. Sch. News (Aug. 3, 2022), https://perma.cc/MN58-2EVK.
• 69 Lessig, supra note 54, at 105.
• 71 See supra Part III.B.
• 72 Doeuk, supra note 48, at 804–13; see also John Bowers & Jonathan Zittrain, Answering Impossible Questions: Content Governance in an Age of Disinformation , Harv. Kennedy Sch. Misinformation Rev. (Jan. 14, 2020), https://perma.cc/R7WW-8MQX.
• 73 Daphne Keller, Systemic Duties of Care and Intermediary Liability , Ctr. for Internet & Soc’y Blog (May 28, 2020), https://perma.cc/25GU-URGT.
• 75 Decreto No. 12.965, de 23 de abril de 2014, Diário Oficial da União [D.O.U.] de 4.14.2014 (Braz.) art. 19. In order to ensure freedom of expression and prevent censorship, providers of internet applications can only be civilly liable for damages resulting from content generated by third parties if, after specific court order, they do not make arrangements to, in the scope and technical limits of their service and within the indicated time, make unavailable the content identified as infringing, otherwise subject to the applicable legal provisions. Id .
• 76 Id. art. 21. The internet application provider that provides content generated by third parties will be held liable for the violation of intimacy resulting from the disclosure, without authorization of its participants, of images, videos, or other materials containing nude scenes or private sexual acts when, upon receipt of notification by the participant or its legal representative, fail to diligently promote, within the scope and technical limits of its service, the unavailability of this content. Id .
• 77 Balkin, supra note 2, at 2017.
• 78 Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech , 131 Harv. L. Rev. 1598, 1603 (2018).
• 79 Transparency Reporting Index, Access Now (July 2021), https://perma.cc/2TSL-2KLD (cataloguing transparency reporting from companies around the world).
• 80 Hum. Rts. Comm., Rep. of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, ¶¶ 63–66, U.N. Doc A/HRC/32/35 (2016).
• 81 Paddy Leerssen, The Soap Box as a Black Box: Regulating Transparency in Social Media Recommender Systems , 11 Eur. J. L. & Tech. (2020).
• 82 Daphne Keller, Some Humility About Transparency , Ctr. for Internet & Soc’y Blog (Mar. 19, 2021), https://perma.cc/4Y85-BATA.
• 83 Mark MacCarthy, Transparency Requirements for Digital Social Media Platforms: Recommendations for Policy Makers and Industry , Transatlantic Working Grp. (Feb. 12, 2020).
• 84 2022 O.J. (L 277) 1 [hereinafter DSA].
• 85 The DSA was approved by the European Parliament on July 5, 2022, and on October 4, 2022, the European Council gave its final acquiescence to the regulation. Digital Services: Landmark Rules Adopted for a Safer, Open Online Environment , Eur. Parliament (July 5, 2022), https://perma.cc/BZP5-V2B2. The DSA increases transparency and accountability of platforms, by providing, for example, for the obligation of “clear information on content moderation or the use of algorithms for recommending content (so-called recommender systems); users will be able to challenge content moderation decisions.” Id .
• 86 MacCarthy, supra note 83, 19–24.
• 87 To this end, American legislators recently introduced a U.S. Congressional bill that proposes a model for conducting research on the impacts of digital communications in a way that protects user privacy. See Platform Accountability and Transparency Act, S. 5339, 117th Congress (2022). The project mandates that digital platforms share data with researchers previously authorized by the Federal Trade Commission and publicly disclose certain data about content, algorithms, and advertising. Id .
• 88 Yifat Nahmias & Maayan Perel, The Oversight of Content Moderation by AI: Impact Assessment and Their Limitations , 58 Harv. J. on Legis. 145, 154–57 (2021).
• 89 Auditing Algorithms: The Existing Landscape, Role of Regulator and Future Outlook , Digit. Regul. Coop. F. (Sept. 23, 2022), https://perma.cc/7N6W-JNCW.
• 90 See generally Koshiyama et al., supra note 46.
• 91 In Article 37, the DSA provides that digital platforms of a certain size should be accountable, through annual independent auditing, for compliance with the obligations set forth in the Regulation and with any commitment undertaken pursuant to codes of conduct and crisis protocols.
• 92 Digit. Regul. Coop. F., supra note 89.
• 93 In a transparency report published at the end of its first year of operation, the Oversight Board highlighted the inadequacy of the explanations presented by Meta on the operation of a system known as cross-check, which apparently gave some users greater freedom on the platform. In January 2022, Meta explained that the cross-check system grants an additional degree of review to certain content that internal systems mark as violating the platform’s terms of use. Meta submitted a query to the Board on how to improve the functioning of this system and the Board made relevant recommendations. See Oversight Board Published Policy Advisory Opinion on Meta’s Cross-Check Program , Oversight Bd. (Dec. 2022), https://perma.cc/87Z5-L759.
• 94 Evelyn Douek, Content Moderation as Systems Thinking , 136 Harv. L. Rev. 526, 602–03 (2022).
• 95 The illicit nature of child pornography is objectively apprehended and does not implicate the same subjective considerations that the other referenced categories entail. Not surprisingly, several databases have been created to facilitate the moderation of this content. See Ofcom, Overview of Perceptual Hashing Technology 14 (Nov. 22, 2022), https://perma.cc/EJ45-B76X (“Several hash databases to support the detection of known CSAM exist, e.g. the National Center for Missing and Exploited Children (NCMEC) hash database, the Internet Watch Foundation (IWF) hash list and the International Child Sexual Exploitation (ICSE) hash database.”).
• 97 Jonathan Haidt, Why the Past 10 Years of American Life Have Been Uniquely Stupid , Atlantic (Apr. 11, 2022), https://perma.cc/2NXD-32VM.

The University of Chicago The Law School

Balancing free speech and social media regulation, justice on brazil’s federal supreme court.

The internet, while democratizing access to information and the public square, has also brought new risks and challenges to democracy, the Hon. Luís Roberto Barroso told a crowd of students and professors at the Ulysses and Marguerite Schwartz Memorial Lecture titled “Democracy, Social Media and Free Expression.” Barroso, a justice of Brazil’s Federal Supreme Court since 2013, recently served a two-year term as president of the Superior Electoral Court, the highest court administering the electoral process in Brazil.

In his lecture at the Law School last month, Barroso described how the current wave of authoritarian populism around the world uses social media—including platforms like WhatsApp and Telegram in addition to Instagram, Facebook, and TikTok—to spread disinformation, hate speech, conspiracy theories, and slander. This “violates fundamental rights of people,” he said, “and compromises free speech by tainting the public debate.”

Public debate, he said, is “an essential part of a functioning democracy.” Before the proliferation of the internet, most publicly available information was filtered by the press, which adhered to professional standards aimed at ensuring accuracy, fairness, and civility.

“The problem that is happening in the world is that people do not differ anymore only in their opinions, they differ in the facts they believe,” he added. If people can no longer agree on facts, it hinders their ability to communicate, leading people to grow intolerant of others and lash out in violence.

Although social media is the most important source of information for most people these days, Barroso said, these platforms “don’t produce information, they don’t produce knowledge, they don’t produce news.” If social media continues to encroach on the professional press’s business model, we will continue to lose valuable content and information, he warned.

Additionally, social media has dramatically changed the scale of access by enabling ordinary people to become publishers—including those who are neither trained nor required to adhere to professional norms. This can lead to serious consequences such as the unfiltered circulation of disinformation and what Barroso called “the tribalization of life.”

Echo chambers, in which people only consume information that matches what they already believe, increases polarization and radicalization, he said.

There was a belief when the internet was built that “it should be free, open, and unregulated,” he said, “however, this belief had to cede to reality.”

Companies running digital platforms should be subject to content control, Barroso said. Regulating content, he admitted, is one of the most difficult topics the democratic world faces, because governments and platforms must delicately balance free speech with regulation.

He suggested democratic governments provide a basic framework for content regulation that requires companies be transparent, establish due process, and not discriminate in their enforcement. Digital platforms should then self-regulate through terms of use and by identifying what and how to moderate content. Barroso also suggested the industry could use “regulated self-regulation” by establishing independent non-governmental bodies to supervise regulation and moderation.

Content moderation—companies banning, amplifying, or labeling content posted on their platforms—should confront inauthentic behavior and illegal content. Barroso defined inauthentic behavior as the use of bots, fake profiles, or hired provocateurs to amplify misinformation, disinformation, lies, hate speech, or conspiracy theories.

Within the realm of content regulation, platform liability is another major point of discussion, Barroso said. He pointed to experimental models in the European Union and Brazil as potential ways to handle subjective liability. The EU recently approved the Digital Services Act, which, he said, will allow courts to hold a platform liable if a party notifies the platform that content is illegal or violates rights, the platform does not remove the content, and the court finds that the content should have been removed. In Brazil, a platform becomes liable for harms caused by any content subject to a provisional judicial order of removal.

Throughout the elections the justice oversaw, the Superior Electoral Court partnered with digital platforms to ensure they were prepared to remove content posted and amplified by inauthentic actors. The Court additionally established direct channels of communication with the platforms to notify them when the Court identified misinformation.

Brazil just completed a very close election in which the incumbent, Jair Bolsonaro, sought to sow doubt in advance about the outcome. The Court played a role in attempting to fight disinformation between candidates—something Barroso said is “very difficult to do.” Still, what has so far been a relatively smooth transition is due in part to the effective regulatory structures and transparency of administration that were in place.

In the mid-term, Barroso believes society has a vital role to play, as the work of the courts, government regulation, and platform content moderation is not enough on its own.

“Despite all the efforts by governments and by the platforms, if we want to preserve the internet as a healthy public sphere, that will depend on the attitudes and demands of society,” he said.

People should be educated and aware of how to sort falsehoods from truth as well as the dangers of amplifying inauthentic information.

While Barroso focused on content regulation, he also indicated that the economic regulation of social media companies was necessary, in part to prevent further erosion of the professional press’s business model. He said that included applying antitrust law, protecting consumers, protecting copyright, and establishing fair taxation.

Additionally, Barroso said he sees a greater need for privacy protections as advances in biotechnology, neuroscience, psychology, and information technology provide a means to manipulate users. Cognitive liberty, he said, is of rising importance—and one he hopes to see studied in greater depth.

“There is a new fundamental right being built and being discussed,” he said, and it is all about ensuring companies do not use the vast amounts of information they collect to “influence my will … or my feelings … or my desires.”

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What is the role of free speech in a democratic society?

Book co-edited by prof. geoffrey stone examines evolution, future of first amendment.

Free speech has been an experiment from the start—or at least that’s what Justice Oliver Wendell Holmes suggested nearly a century ago in his dissent in  Abrams v. United States , one of the first decisions to interpret and shape the doctrine that would come to occupy a nearly sacred place in America’s national identity.

Since then, First Amendment jurisprudence has stirred America in novel ways, forcing deep introspection about democracy, society and human nature and sometimes straddling the political divide in unexpected fashion. In the past 100 years, free speech protections have ebbed and flowed alongside America’s fears and progress, adapting to changing norms but ultimately growing in reach.

And now, this piece of the American experiment faces a new set of challenges presented by the ever-expanding influence of technology as well as sharp debates over the government’s role in shaping the public forum.

That’s why Geoffrey R. Stone, the Edward Levi Distinguished Service Professor at the University of Chicago Law School, and Lee Bollinger, the president of Columbia University, two of the country’s leading First Amendment scholars, brought together some of the nation’s most influential legal scholars in a new book to explore the evolution—and the future—of First Amendment doctrine in America. 

The Free Speech Century  (Oxford University Press) is a collection of 16 essays by Floyd Abrams, the legendary First Amendment lawyer; David Strauss, the University of Chicago’s Gerald Ratner Distinguished Service Professor of Law; Albie Sachs, former justice of the Constitutional Court of South Africa; Tom Ginsburg, the University of Chicago’s Leo Spitz Professor of International Law; Laura Weinrib, a University of Chicago Professor of Law; Cass Sunstein, a professor at Harvard Law School; and others.

“Lee and I were law clerks together at the Supreme Court during the 1972 term,” Stone said. “I was with Justice Brennan and Lee was with Chief Justice Burger. We have both been writing, speaking and teaching about the First Amendment now for 45 years. This was a good time, we decided, to mark the 100th anniversary of the Supreme Court’s first decision on the First Amendment with a volume that examines four basic themes: The Nature of First Amendment Jurisprudence, Major Critiques and Controversies over Current Doctrine, The International Impact of our First Amendment Jurisprudence, and the Future of Free Speech in a World of Ever-Changing Technology. Our hope is that this volume will enlighten, inspire and challenge readers to think about the role of free speech in a free and democratic society.”

Stone, JD’71, has spent much of his career examining free speech— a topic he first became passionate about as a University of Law School student.

The University has a long tradition of upholding freedom of expression. UChicago’s influential 2015 report by the Committee on Freedom of Expression, which Stone chaired, became a model for colleges and universities across the country.

The collection takes on pressing issues, such as free expression on university campuses, hate speech, the regulation of political speech and the boundaries of free speech on social media, unpacking the ways in which these issues are shaping the norms of free expression.

One essay, for instance, explores how digital behemoths like Facebook, Twitter and Google became “gatekeepers of free expression”—a shift that contributor Emily Bell, a Columbia University journalism professor, writes “leaves us at a dangerous point in democracy and freedom of the press.” Her article examines foreign interference in the 2016 election and explores some of the questions that have emerged since, such as how to balance traditional ideas of a free press with the rights of citizens to hear accurate information in an information landscape that is now dominated by social media.

Technology, the editors write, has presented some of the most significant questions that courts, legal scholars, and the American public will face in the coming decades.

“While vastly expanding the opportunities to participate in public discourse, contemporary means of communication have also arguably contributed to political polarization, foreign influence in our democracy, and the proliferation of ‘fake’ news,” Stone writes in the introduction. “To what extent do these concerns pose new threats to our understanding of ‘the freedom of speech, and of the press’? To what extent do they call for serious reconsideration of some central doctrines and principles on which our current First Amendment jurisprudence is based?”

In another essay, Strauss, an expert in constitutional law, examines the principles established in the 1971 Pentagon Papers case,  New York Times Co. v. United States.  The landmark ruling blocked an attempt at prior restraint by the Nixon administration, allowing the  New York Times  and  Washington Post  to publish a classified report that reporters had obtained about America’s role in Vietnam. The threat to national security wasn’t sufficiently immediate or specific to warrant infringing on the papers’ right to publish, the Court said at the time.

But today’s world is different, Strauss argues. It is easier to leak large amounts of sensitive information—and publication is no longer limited to a handful of media companies with strict ethical guidelines. What’s more, the ease with which information can be shared—digitally as opposed to carefully sneaking papers in batches from locked cabinets to a photocopier, as military analyst Daniel Ellsberg did when leaking the Pentagon Papers—means that a larger number of people can act as leakers. That can include those who don’t fully understand the information they are sharing, which many have argued was the case when former IT contractor Edward Snowden allegedly leaked millions of documents from the National Security Agency in 2013.

“[T]he stakes are great on both sides,” Strauss writes, “and the world has changed in ways that make it important to rethink the way we deal with the problem.”

Ultimately, the health of the First Amendment will depend on two things, Bollinger writes: a continued understanding that free speech plays a critical role in democratic society—and a recognition that the judicial branch doesn’t claim sole responsibility for achieving that vision. The legislative and executive branches can support free speech as well.

What’s more, modern-day challenges do not have to result in an erosion of protections, Bollinger argues.

“[O]ur most memorable and consequential decisions under the First Amendment have emerged in times of national crises, when passions are at their peak and when human behavior is on full display at its worst and at its best, in times of war and when momentous social movements are on the rise,” he writes. “Freedom of speech and the press taps into the most essential elements of life—how we think, speak, communicate, and live within the polity. It is no wonder that we are drawn again and again into its world.”

—Adapted from an article that first appeared on the University of Chicago Law School website.

Related content

• Examining the importance of free expression
• Podcast: SCOTUS Nears Unimaginable Era with Geoffrey Stone

Publications

The Free Speech Century

Geoffrey R. Stone, Lee C. Bollinger

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Morality, violence, and free speech on social media, should tiktok have taken down the bin laden letter.

Posted November 19, 2023 | Reviewed by Gary Drevitch

Recently, a letter written by the late terrorist, Osama Bin Laden, advocating killing Americans and Jews was circulated on TikTok. The letter was subsequently taken down by the administrators of the site along with commentary defending it. Should TikTok have taken down these posts; or did it violate these individuals’ right to free speech? In this digital age, the questions raise new considerations which warrant analysis, especially in a period of history when there is a growing trend toward systemic racism, xenophobia , and other forms of discrimination .

A classical statement about whether and when free speech can be censored in a democratic society comes from philosopher John Stuart Mill in his classic essay, On Liberty (1859). Wrote Mill:

An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard. Acts, of whatever kind, which, without justifiable cause, do harm to others, may be, and in the more important cases absolutely require to be, controlled by the unfavourable sentiments, and, when needful, by the active interference of mankind (Ch. 3, Mill).

In 1919, U.S. Supreme Court Justice Oliver Wendell Holmes, in Schenck v. United States , aligned with Mill, stating that:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic . It does not even protect a man from an injunction against uttering words that may have all the effect of force. … The question in every case is whether the words used are used in such circumstances and are of such a nature as to. create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Neither Mill nor Holmes could have foreseen the challenge presented by the internet as a vehicle for inciting an angry mob to do violence to others by uttering words that could have all the effect of force. The theatre of cyberspace has the far-reaching capacity to incite millions globally, especially via social media platforms such as TikTok, Facebook, and X, among others. Statements intended to encourage violence to other human beings that are uttered in a relatively small physical space may be much less dangerous, when weighed on a social scale, than the same statements made over the internet.

Hence, while free speech should be preserved on the Internet, thereby permitting it to endure as the greatest experiment in democracy ever attempted, this does not bar it from limitations. Such restriction includes hateful, prejudicial speech that poses a “clear and present danger” to others.

There is, of course, the controversial question of whether the government should get involved with restrictions of free speech in such cases given the uncanny power it has of encroaching on freedom of speech if not itself constrained. Alternatively, it may arguably be the professional responsibility of administrators of such behemoth bastions of cyber speech to regulate such speech when it occurs. In other words, the latter may be treated as part of the professional code of ethics of those who stand as the gatekeepers of social media.

The grounds of such a moral responsibility, according to Mill, would be harm to others. Freedom of speech, argued Mill, should not be restricted unless it portends physical harm to others. The fact that some may be emotionally upset by a certain line of speech, even hateful speech, is not itself grounds for censoring it. Mill suggested that such censorship ultimately deprives humanity of a forum in which all ideas can be displayed side-by-side, both true and false, thereby allowing the truth to be heard while the false is exposed against the background of truth.

The exception, however, should not devour the rule. Thus, the criterion for restricting speech needs to be narrow so as not to infringe on other types of speech. Hate speech is itself too broad for these purposes. Someone can express hatred without threatening to harm the object of hatred. Hence, not all hate speech would qualify as that which “creates a clear and present danger.”

Speech has what philosophers of language call “illocutionary force.” That is, it can be used to perform diverse acts . For example, in saying “I hate Blacks (Jews, Muslims, Buddhists, Hindus, Christians, Americans, or whomever)," one is reporting or expressing one’s own subjective, negative emotion toward the group in question. On the other hand, in saying something equivalent to “American civilians should be killed” (due to their paying taxes to the American government—an argument advanced by Bin Laden in the letter removed by TikTok), one is also making a threat , or, at least recommending killing American civilians. Such speech acts, committed in a forum that reaches millions of people, at least some of whom are likely to be inclined toward violence, arguably creates a “clear and present danger” to innocent civilians. It does not matter whether the intended targets are Americans, Israelis, Palestinians, Backs, Whites, or whomever. The threat, or recommendation, is one which, arguably falls under Mill's Harm Principle, and can, therefore, on this criterion, be censored. Thus, the criterion consonant with Mill’s principle, as applied to social media, can take the following form:

Does the post in question threaten or recommend doing substantial physical harm to a certain individual or group of individuals?

If the answer to this question is yes, then the administrators of a social media network do, indeed, have a professional responsibility to take down, or disallow the post pursuant to Mill’s Harm Principle.

Elliot D. Cohen, Ph.D. , is the president of the Logic-Based Therapy and Consultation Institute and one of the principal founders of philosophical counseling in the United States.

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ELAINE HARRIS SPEARMAN: Free speech has its limits, even on social media

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Religion and politics provide the most fertile ground for disagreements, if you are looking for areas that find most people having heated discussions.

There are a great many faith denominations in this country. There are also a great many non-denominational worshippers occupying this same space.

All of this adds up to a free exercise of religion, which is contained within the First Amendment to the United States Constitution. The free exercise clause of the First Amendment guarantees you the right to practice your religious beliefs without government interference. However, the government need not always yield to religious beliefs when laws and religious tenets clash.

The First Amendment free exercise clause often butts heads with the freedom of speech, which is also guaranteed by the First Amendment. The right to freedom of speech is not absolute. The classic law school example for speech that is not protected is running into a crowded theater and falsely yelling “Fire!” Preventing the high potential for risk of injuries caused in the ensuing panic greatly outweighs the person’s right to that kind of speech.

Free speech does not mean that you can say anything that you want, at any time and place that you choose, to anybody. Every individual has the same right, and yours end where the next person’s begins.

Social media has created a climate for people to go beyond the pale in the pursuit of freedom of speech. The audiences are captive because they choose to be. Those who are not participating are exercising their right to not hear or read what a person has to say.

As some are discovering, social media does not protect certain kinds of speech.

Why would anybody in their right mind think that it is OK for a defendant involved in a trial before a judge to believe that it is within a right to free speech to engage in conduct on social media that places a judicial officer and his family at risk of harm?

Donald John Trump is engaging in the very behavior that the world saw in real time in the nation’s capital on Jan. 6, 2021. He appears to be encouraging violence toward a public servant. Why else would he name the presiding judge’s daughter, along with other information?

Public servants all over this country should be disparaging this conduct. Any other American citizen would have a takedown by federal marshals and/or Homeland Security. This is no exercise of free speech. It is encouraging people to go rogue, even those who may not be inclined to do so . This is what Trump does.

The smug-faced young man shown worldwide in his MAGA cap nose-to-nose with an elderly Native American in Washington, D.C., has been informed by the courts that he has nothing coming. Nicholas Sandmann claimed that he was defamed by media reports on his confrontation with a Native American rights activist at the Lincoln Memorial in January 2019.

Trump of course has defended Sandmann, as he told the attendees at the 2020 Republican National Convention that the media was trying to “cancel” him.

A federal judge in Kentucky dismissed his lawsuit in 2022. The activist's statement that “Sandmann blocked his retreat as reported by the news was the activist opinion and that the media could not be sued for reporting the statement.” The Cincinnati-based 6th U.S. Court of Appeals upheld the judge’s dismissal. The Supreme Court has declined to hear the Trump acolyte’s appeal.

The judicial system is choking with lawsuits of every kind, which is the strategy that Trump has bragged about using all of his life.

As the MAGA acolytes wrap themselves in the flag and the tag of “Christian conservative,” there was no reference to Trump labeling himself as such.

Michael Cohen, the former personal attorney and acknowledged Trump “fixer,” said, “Begin with the premise that Donald Trump hadn’t darkened the door of a church or chapel since the age of seven.” Places of religious worship had absolutely no interest to him and he possessed precisely zero personal piety in his life. But he knew the power of religion in a rhetorical question about how the “amoral” Trump came to be beloved by evangelical voters.

He is, of course, reportedly now hawking a Bible in addition to falsely calling out the Catholic faithful to go against President Joe Biden because the Trans Day of Visibility fell on Easter Sunday. This named day has always been on March 31, since being recognized in 2009. Easter has not.

Desperate people do desperate things.

Elaine Harris Spearman, Esq., a Gadsden native, is an attorney and is the retired legal advisor to the comptroller of the City of St. Louis. The views expressed are her own. 

This article originally appeared on The Gadsden Times: ELAINE HARRIS SPEARMAN: Trump's social media use should draw criticism

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Supreme Court wary of restricting government contact with social media platforms in free speech case

By Melissa Quinn

Updated on: March 18, 2024 / 8:43 PM EDT / CBS News

Washington — The Supreme Court on Monday appeared wary of limiting the Biden administration's contacts with social media platforms in a closely watched dispute that  tests how much the government can  pressure social media companies to remove content before crossing a constitutional line from persuasion into coercion.

The case, known as Murthy v. Missouri, arose out of efforts during the early months of the Biden administration to push social media platforms to take down posts that officials said spread falsehoods about the pandemic and the 2020 presidential election. 

A U.S. district court judge said White House officials, as well as some federal agencies and their employees, violated the First Amendment's right to free speech by "coercing" or "significantly encouraging" social media sites' content-moderation decisions. The judge issued an injunction restricting the Biden administration's contacts with platforms on a variety of issues, though that order has been on hold.

During oral arguments on Monday, the justices seemed skeptical of a ruling that would broadly restrict the government's communications with social media platforms, raising concerns about hamstringing officials' ability to communicate with platforms about certain matters.

"Some might say that the government actually has a duty to take steps to protect the citizens of this country, and you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information," Justice Ketanji Brown Jackson told Benjamin Aguiñaga, the Louisiana solicitor general. "I'm really worried about that, because you've got the First Amendment operating in an environment of threatening circumstances from the government's perspective, and you're saying the government can't interact with the source of those problems."

Justice Amy Coney Barrett warned Aguiñaga that one of the proposed standards for determining when the government's actions cross the bound into unlawful speech suppression — namely when a federal agency merely encourages a platform to remove problematic posts — "would sweep in an awful lot." She questioned whether the FBI could reach out to a platform to encourage it to take down posts sharing his and other Louisiana officials' home addresses and calling on members of the public to rally.

Aguiñaga said the FBI could be encouraging a platform to suppress constitutionally protected speech.

The legal battle is one of five that the Supreme Court is considering this term that stand at the intersection of the First Amendment's free speech protections and social media. It was also the first of two that the justices heard Monday that involves alleged jawboning, or informal pressure by the government on an intermediary to take certain actions that will suppress speech.

The second case raises whether a New York financial regulator  violated the National Rifle Association's free speech rights  when she pressured banks and insurance companies in the state to sever ties with the gun rights group after the 2018 shooting in Parkland, Florida. Decisions from the Supreme Court in both cases are expected by the end of June.

The Biden administration's efforts to stop misinformation

The social media case stems from the Biden administration's efforts to pressure platforms, including Twitter, now known as X, YouTube and Facebook, to take down posts it believed spread falsehoods about the pandemic and the last presidential election.

Brought by five social media users and two states, Louisiana and Missouri, their challenge claimed their speech was stifled when platforms removed or downgraded their posts after strong-arming by officials in the White House, Centers for Disease Control, FBI and Department of Homeland Security.

The challengers alleged that at the heart of their case is a "massive, sprawling federal 'Censorship Enterprise,'" through which federal officials communicated with social media platforms with the goal of pressuring them to censor and suppress speech they disfavored.

U.S. District Judge Terry Doughty found that seven groups of Biden administration officials violated the First Amendment because they transformed the platforms' content-moderation decisions into state action by "coercing" or "significantly encouraging" their activities. He limited the types of communications agencies and their employees could have with the platforms, but included several carve-outs.

The U.S. Court of Appeals for the 5th Circuit then determined that certain White House officials and the FBI violated free speech rights when they coerced and significantly encouraged platforms to suppress content related to COVID-19 vaccines and the election. It narrowed the scope of Doughty's order but said federal employees could not "coerce or significantly encourage" a platform's content-moderation decisions.

The justices in October agreed to decide whether the Biden administration impermissibly worked to suppress speech on Facebook, YouTube and X. The high court temporarily paused the lower court's order limiting Biden administration officials' contact with social media companies.

In filings with the court, the Biden administration argued that the social media users and states lack legal standing to even bring the case, but said officials must be free "to inform, to persuade, and to criticize."

"This case should be about that fundamental distinction between persuasion and coercion," Brian Fletcher, principal deputy solicitor general, told the justices. 

Fletcher argued that the states and social media users were attempting to use the courts to "audit all of the executive branch communications with and about social media platforms," and said administration officials public statements are "classic bully pulpit exhortations."

But Aguiñaga told the justices that the platforms faced "unrelenting pressure" from federal officials to suppress protected speech.

"The government has no right to persuade platforms to violate Americans' constitutional rights," he said. "And pressuring platforms in in backrooms shielded from public view is not using the bully pulpit at all. That's just being a bully."

The oral arguments

Several of the justices questioned whether the social media users who brought the suit demonstrated that they suffered a clear injury traceable to the government or could show that an injunction against the government would correct future injuries caused by the platforms' content moderation, which much be shown to bring a challenge in federal courts.

"I have such a problem with your brief," Justice Sonia Sotomayor told Aguiñaga. "You omit information that changes the context of some of your claims. You attribute things to people that it didn't happen to. ... I don't know what to make of all this because I'm not sure how we get to prove direct injury in any way."

Aguiñaga apologized and said he takes "full responsibility" for any aspects of their filings that were not forthcoming.

Justice Elena Kagan asked Aguiñaga to point to the piece of evidence that most clearly showed that the government was responsible for his clients having material taken down.

"We know that there's a lot of government encouragement around here," she said. "We also know that the platforms are actively content moderating, and they're doing that irrespective of what the government wants, so how do you decide that it's government action as opposed to platform action?"

The justices frequently raised communications between the federal government and the press, which often involve heated discussions.

Justice Samuel Alito referenced emails between federal officials and platforms, some of which he said showed "constant pestering" by White House employees and requests for meetings with the social media sites.

"I cannot imagine federal officials taking that approach to the print media, our representatives over there," he said, referencing the press section in the courtroom. "If you did that to them, what do you think the reaction would be?"

Alito speculated that the reason why the federal officials felt free to pressure the platforms was because it has Section 230, a key legal shield for social media companies, and possible antitrust action "in its pocket," which he called "big clubs available to it." 

"It's treating Facebook and these other platforms like they're subordinates," Alito said. "Would you do that to the New York Times or the Wall Street Journal or the Associated Press or any other big newspaper or wire service?"

Fletcher conceded that officials' anger is "unusual," but said it's not odd for there to be a back-and-forth between White House employees and the media.

Kavanaugh, though, said that he "assumed, thought, experienced government press people throughout the federal government who regularly call up the media and berate them." He also noted that "platforms say no all the time to the government."

Chief Justice John Roberts — noting that he has "no experience coercing anybody" — said the government is "not monolithic, and that has to dilute the concept of coercion significantly." Roberts said one agency may be attempting to coerce a platform one way, while another may be pushing it to go the other direction.

The NRA's court fight

In the second case, the court considered whether the former superintendent of the New York State Department of Financial Services violated the NRA's free speech rights when she pushed regulated insurance companies and banks to stop doing business with the group.

Superintendent Maria Vullo, who left her post in 2019, had been investigating since 2017 two insurers involved in NRA-endorsed affinity programs, Chubb and Lockton, and determined they violated state insurance law. The investigation found that a third, Lloyd's of London, underwrote similar unlawful insurance products for the NRA.

Then, after the Parkland school shooting in February 2018, Vullo issued guidance letters that urged regulated entities "to continue evaluating and managing their risks, including reputational risks" that may arise from their dealings with the NRA or similar gun rights groups.

Later that year, the Department of Financial Services entered into consent decrees with the three insurance companies it was investigating. As part of the agreements, the insurers admitted they provided some unlawful NRA-supported programs and agreed to stop providing the policies to New York residents. 

The NRA then sued the department, alleging that Vullo privately threatened insurers with enforcement action if they continued working with the group and created a system of "informal censorship" that was designed to suppress its speech, in violation of the First Amendment.

A federal district court sided with the NRA, finding that the group sufficiently alleged that Vullo's actions "could be interpreted as a veiled threat to regulated industries to disassociate with the NRA or risk DFS enforcement action."

But a federal appeals court disagreed and determined that the guidance letters and a press release couldn't "reasonably be construed as being unconstitutionally threatening or coercive," because they "were written in an even-handed, nonthreatening tone" and used words intended to persuade, not intimidate.

The NRA appealed the decision to the Supreme Court, which agreed to consider whether Vullo violated the group's free speech rights when she urged financial entities to sever their ties with it.

"Allowing unpopular speech to form the basis for adverse regulatory action under the guise of 'reputational risk,' as Vullo attempted here, would gut a core pillar of the First Amendment," the group, which is represented in part by the American Civil Liberties Union, told the court in a filing .

The NRA argued that Vullo "openly targeted the NRA for its political speech and used her extensive regulatory authority over a trillion-dollar industry to pressure the institutions she oversaw into blacklisting the organization."

"In the main, she succeeded," the organization wrote. "But in doing so, she violated the First Amendment principle that government regulators cannot abuse their authority to target disfavored speakers for punishment."

Vullo, though, told the court that the insurance products the NRA was offering its members were unlawful, and noted that the NRA itself signed a consent order with the department after Vullo left office after it found the group was marketing insurance producers without the proper license from the state.

"Accepting the NRA's arguments would set an exceptionally dangerous precedent," lawyers for the state wrote in a Supreme Court brief. "The NRA's arguments would encourage damages suits like this one and deter public officials from enforcing the law — even against entities like the NRA that committed serious violations."

The NRA, they claimed, is asking the Supreme Court to give it "favored status because it espouses a controversial view," and the group has never claimed that it was unable to exercise its free speech rights.

• Biden Administration
• Supreme Court of the United States
• Social Media
• Free Speech

Melissa Quinn is a politics reporter for CBSNews.com. She has written for outlets including the Washington Examiner, Daily Signal and Alexandria Times. Melissa covers U.S. politics, with a focus on the Supreme Court and federal courts.

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Challenges of Ethically Regulating Free Speech on College Campuses

By shoellis

By: Olivia Welsh, Ethics and Policy Intern

Each day, headlines highlight the ongoing questions we have about the role of universities in public discourse. These conversations center on questions surrounding political neutrality, what is considered “appropriate” speech from students and faculty, and how to protect university community members from harm. These are not new questions, but the escalation of the Israel-Palestine conflict, from everyday campus protests to Ivy League president resignations, has brought the issue of free speech on college campuses to a boiling point.

A university or higher-education institution is inherently a setting where intellectual and ideological disagreement will occur – and should even be encouraged. The challenge is where and how do we draw the line. What type of speech is so harmful to members of the community that it must be restricted? Who gets to decide the line between right and wrong? What is a university’s responsibility to speak out about the social and political issues of the day?

Being uncomfortable is a necessary part of growth. Being unsafe is not. This is the balance that colleges and universities are trying to strike every day. Can there ever be an institution that gets it exactly right in the eyes of all?

The background of college campus free speech

In the 1960s, free speech on college campuses was at the forefront of higher education discussions. The University of Chicago made its first attempt at taking an official stance by publishing the Kalven Report. This 1967 statement, still in use today, argues that institutions should remain socially and politically neutral while fostering lively debate among their members. The authors of the Kalven Report believed that a university should not suppress any viewpoints or change its corporate activities to foster social or political values.

“The university is the home and sponsor of critics; it is not itself the critic. […] To perform its mission in society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures” [5].

In short, the report states that a university should be a place to discuss all possible perspectives without censorship. The members of a university community can come to their own conclusions and act independently of the institution itself. The Kalven Report pushes back at anyone who might consider such a choice to not weigh in on the topics of the day as cowardly or uncaring:

“The neutrality of the university as an institution arises then not from a lack of courage nor out of indifference and insensitivity. It arises out of respect for free inquiry and the obligation to cherish a diversity of viewpoints. And this neutrality as an institution has its complement in the fullest freedom for its faculty and students as individuals to participate in political action and social protest.” [5]

In 2014, the University of Chicago decided to make another statement amidst an onslaught of various free speech lawsuits against universities nationwide. The resulting Chicago Principles delineate a clear and longstanding commitment to free speech and allow a wide diversity of ideas to be discussed in the University setting. The Chicago Principles reiterate the sentiment of the Kalven Report, calling debate and deliberation essential to higher education, even if the ideas discussed are viewed as “offensive, unwise, immoral, or wrong-headed” [8]. It guarantees “the broadest possible latitude to speak, write, listen, challenge, and learn,” provided that such behavior does not interfere with the core functioning of the university [8]. Furthermore, the Chicago Principles demand that all community members not obstruct or otherwise interfere with others’ freedom of speech. The Chicago Principles conclude by arguing that “without a vibrant commitment to free and open inquiry, a university ceases to be a university” [8].

These are the positions that the University of North Carolina System (“UNC System”) adopted in 2017, as endorsed by the University of North Carolina at Chapel Hill’s (“UNC-Chapel Hill”) Faculty Council and Board of Trustees [10] [3]. The UNC System schools are among over 100 other colleges and universities nationwide that have adopted the Chicago Principles, including several of our peer institutions [4]. In 2022, the UNC-Chapel Hill Board of Trustees took a further step in protecting free speech by adopting the Kalven Report [2].

“The mission of The University of North Carolina at Chapel Hill is advanced by our commitment to the aspirational principles that guide our public conversation no matter how unsettling […] At Carolina, we have long known that light and liberty are the essential tools that allow problems to be seen, ideas to be tested, and solutions to be found,” the Faculty Council states [10].

Of course, both the UNC System and UNC-Chapel Hill have policies regulating free speech, which forbid defamation, unlawful harassment, true threats, unjust invasions of privacy, and more (see the UNC System Policy and the UNC-Chapel Hill Policy ). However, these policies leave several unanswered questions. For example, it is not always clear what speech falls under the category of a “true threat,” especially because that might mean different things to different people.

When does protecting free speech interfere with a university’s teaching mission and functioning? Do institutions have a different obligation to protect historically marginalized groups compared to historically well-represented groups? What is a university’s responsibility in addressing social and political issues? There are no “right” answers, but some views on these questions are explored below.

When does protecting free speech inhibit a university’s functioning?

The Kalven Report, the Chicago Principles, and the UNC policies all indicate that it is appropriate to restrict free speech when it interferes with the necessary functioning of the university, with safety concerns being of utmost importance. Beyond cases like riots that would physically disallow classes from taking place and endanger members of the university, disruptions like exclusionary speech could also be viewed as interfering with a university’s core functioning by hindering equal access to education. If it is a university’s mission to educate all its students, but a particular group feels unreasonably ostracized due to the free speech of others and feels unable to attend or participate in class, then one could argue that speech is interfering with the necessary functioning of the university.

Say that, while not violating any laws, an anti-Black Lives Matter (“BLM”) speaker comes to campus and delivers a scathing condemnation of the BLM movement. However, the speaker’s remarks and student participation in the event make Black students feel unwelcome on campus, and therefore, these students find it harder to benefit from their education. Does this qualify as speech that interferes with the university’s functioning? And if so, should it not be welcomed on campus?

On the flip side, does inhibiting a challenging viewpoint negatively impact the educational environment? Students should have the opportunity to grapple with difficult ideas and the controversies of the day – that is part of what is so valuable about a liberal arts education. Colleges are not full of fragile students who cannot stand to hear free speech, and they should not be portrayed as such. The key is creating an environment where the needs of all students remain supported even during protests, controversial speakers, and difficult discussions. However, it is not easy to prescribe a single policy for handling free speech since circumstances vary dramatically from institution to institution [1].

Is there a different obligation to protect historically marginalized groups at a university?

Continuing with this hypothetical of an anti-BLM speaker on campus, how might appropriate free-speech regulation differ based on context? According to UNC System data, just over 8% of UNC-Chapel Hill’s undergraduate student body identifies as Black/African American [11]. In the context of having such a significant minority, is it justified to more strictly regulate free speech that makes Black students feel unwelcome and further marginalized at the university?

One might think that free speech should be fully protected regardless because any university member in opposition has an equal right to free speech in response. However, just because someone has the right to free speech does not mean they feel reasonably empowered to use it. This highlights the important distinction between equality, which treats everyone the same, and equity, which recognizes that creating a level playing field often means allocating more or less resources to particular individuals or groups based on their specific circumstances. Giving all campus community members the same right to free speech is equal, but equitable free speech would amplify and protect minority groups.

The teaching mission of a university relies on an inclusive climate. Institutional attention is necessary to ensure that all students in diverse classrooms are comfortable being involved in the learning experience. Because it is important to include ALL students in an environment of free inquiry, there is an argument that free speech that specifically marginalizes an already minority group must be more strictly regulated than controversial speech that makes a majority group uncomfortable [1].

This is where context is important because, unlike UNC-Chapel Hill, Howard University (“Howard”) has a very strong majority of Black students. At Howard, Black students would likely not feel as threatened by an anti-BLM speaker; therefore, students could more comfortably engage in rigorous debate and grapple with differing viewpoints, which is essential in higher education.

What is a university’s responsibility to govern speech on campus about social and political issues?

This past November, a speaker unaffiliated with UNC-Chapel Hill made remarks on campus that sympathized with the violence perpetrated by Hamas against Israeli citizens on October 7th, 2023 [7]. Such tolerance for violence (which killed over a thousand Israeli citizens) is clearly alarming and certainly falls under the category of speech seen as “offensive, unwise, immoral, or wrong-headed.” But remember that, in the spirit of free inquiry and true academia, the Chicago Principles protect such speech. The remarks did not include a threat or any other banned speech.

Then-Chancellor Kevin Guskiewicz strongly condemned the remarks, as did the Dean of the College of Arts and Sciences and many others at UNC-Chapel Hill. Months later, the Faculty Council, the same one that originally endorsed the Chicago Principles, considered a resolution to “strongly condemn the antisemitic statements at the event.” The group decided to indefinitely postpone the resolution, avoiding taking a side on its merits. While some did feel strongly that the remarks were antisemitic, others viewed this as a mislabeling since the comments contained no mention of the Jewish religion or people and only directly criticized the actions of the Israeli state .

There is another tricky consideration – if the Faculty Council passes a resolution condemning antisemitism, must it follow this up with a condemnation of Islamophobia to ensure neutrality and inclusivity? Does this set a precedent by which the Faculty Council must condemn any speech it regards as harmful, even if the speech does not violate the UNC System or UNC-Chapel Hill free speech policies? Who decides what should and should not be condemned, and where is the line drawn regarding what warrants a comment?

Certainly, this is not to say that members of an institution cannot or should not speak up against violence or perceived hate. Still, at the institutional level, there are significant policy ramifications to consider in protecting free speech and thorough education [7]. Starting to weigh in on social and political issues is a slippery slope for universities because it creates an expectation of doing so for all issues. The authors of the Kalven Report anticipated this and promoted institutional neutrality, trying to make a university a simple facility where lively debates on the day’s topics can occur.

This is a perfectly reasonable argument, but there is another drastically different viewpoint. Is institutional neutrality just a convenient excuse for universities to stay silent and take the “easy way out?” [12]. At Indiana University (“IU”), administrators recently caused an uproar when they canceled a scheduled art exhibition by a Palestinian-American artist. IU administration cited security concerns as the reason for the cancellation. However, the artist, members of the IU community, and outside organizations speculate that the real reason is a reaction to comments by an Indiana congressman who threatened to withhold federal funding from IU if it failed to address perceived antisemitism concerns adequately [6].

Walking a political tightrope does not seem to be a legitimate reason for censorship at a public university. Institutional neutrality that allows for all viewpoints to be expressed is very different than a restrictive “institutional neutrality” that prohibits any viewpoints from being expressed. Universities risk establishing an orthodox view on campus by making statements or taking actions regulating free speech, thereby ostracizing alternative thinkers [9]. While a university might not be responsible for acting on social and political issues (the substance for a whole different debate), it does have a responsibility to facilitate an environment that considers social and political issues and equips its students to handle these difficult or delicate issues once they graduate.

Between a rock and a hard place

There are still so many unanswered questions regarding free speech on campus, and it is doubtful that a satisfactory solution will ever be reached. Any policy on free speech must consider legal constraints, institutional missions, and the feelings of students, faculty, and staff. With so many stakeholders to satisfy, it makes sense that the issue of free speech on campus keeps coming up.

During controversial times, it is helpful to remember that heated moments subside, and history reflects that. “Right answers” are hard to come by, but at the end of the day, a university that can keep its campus community safe and facilitate productive conversations is doing its job pretty well.

Supreme Court Wary of States’ Bid to Limit Federal Contact With Social Media Companies

A majority of the justices appeared convinced that government officials should be able to try to persuade private companies, whether news organizations or tech platforms, not to publish information so long as the requests are not backed by coercive threats.

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Adam Liptak

Reporting from Washington

Here’s the latest on the First Amendment case.

A majority of the Supreme Court seemed wary on Monday of a bid by two Republican-led states to limit the Biden administration’s interactions with social media companies, with several justices questioning the states’ legal theories and factual assertions.

Most of the justices appeared convinced that government officials should be able to try to persuade private companies, whether news organizations or tech platforms, not to publish information so long as the requests are not backed by coercive threats.

The dispute was the latest in an extraordinary series of cases this term requiring the justices to assess the meaning of free speech in the internet era.

Justices Brett M. Kavanaugh and Elena Kagan, both former White House lawyers, said interactions between administration officials and news outlets provided a valuable analogy. Efforts by officials to influence coverage are, they said, part of a valuable dialogue that is not prohibited by the First Amendment.

Members of the court also raised questions about whether the plaintiffs — Missouri and Louisiana, along with five individuals — had suffered the kind of injury that gave them standing to sue. They also suggested that a broad injunction prohibiting contacts between many officials and the platforms was not a proper remedy in any event.

“I don’t see a single item in your briefs that would satisfy our normal tests,” Justice Kagan told J. Benjamin Aguiñaga, Louisiana’s solicitor general.

Justice Sonia Sotomayor accused the states of distorting the record in the case. “I have such a problem with your brief,” she told Mr. Aguiñaga. “You omit information that changes the context of some of your claims. You attribute things to people who it didn’t happen to.”

Mr. Aguiñaga apologized “if any aspect of our brief was not as forthcoming as it should have been.”

The justices peppered Mr. Aguiñaga with hypothetical questions about national security, doxxing of public officials and contests that could endanger teenagers, all suggesting that there is a role for vigorous efforts by the government to combat harmful speech.

Justice Samuel A. Alito Jr., the member of the court who appeared most sympathetic to the states’ position, urged his colleagues to remain focused on the case before them.

“Whatever coercion means,” he said, “whatever happened here is sufficient.”

The case arose from a barrage of communications from administration officials urging platforms to take down posts on topics like the coronavirus vaccines and claims of election fraud. Last year, a federal appeals court severely limited such interactions .

The Supreme Court put that injunction on hold last year while it considered the administration’s appeal. If it were to go into effect, said Brian H. Fletcher, a lawyer for the government, it would prohibit all sorts of speech, including public comments from the press secretary or other senior officials seeking to discourage posts harmful to children or conveying antisemitic or Islamophobic messages.

He added that the social media companies had been moderating content on their platforms long before they were contacted by officials, had powerful business incentives to do so and were following their own policies. The companies acted independently of the government, he said, and often rejected requests to take down postings.

“These were sophisticated parties,” he said. “They routinely said no to the government. They weren’t open about it. They didn’t hesitate to do it. And when they said no to the government, the government never engaged in any sort of retaliation.”

Justice Alito said the volume and intensity of the contacts were troubling, as was the suggestion in some of them that the government and the platforms were partners in an effort to combat misinformation about the pandemic.

Mr. Fletcher responded that the messages had to be understood “in the context of an effort to get Americans vaccinated during a once-in-a-lifetime pandemic” at “a time when thousands of Americans were still dying every week.” The platforms, he added, acknowledged “a responsibility to give people accurate information.”

Mr. Aguiñaga presented a different picture of the relationship between the government and the platforms.

“Behind closed doors, the government badgers the platforms 24/7,” he said. “It abuses them with profanity. It warns that the highest levels of the White House are concerned. It ominously says that the White House is considering its options.”

“Under this onslaught,” he added, “the platforms routinely cave.”

The court this term has repeatedly grappled with fundamental questions about the scope of the government’s authority over major technology platforms. On Friday, the court set rules for when government officials can block users from their private social media accounts. Last month, the court considered the constitutionality of laws in Florida and Texas that limit large social media companies from making editorial judgments about which messages to allow.

Those four cases, along with the one on Monday, will collectively rebalance the power of the government and powerful technology platforms in the realm of free speech.

A second argument on Monday posed a related constitutional question about government power and free speech, though not in the context of social media sites. It concerns whether a state official in New York violated the First Amendment by encouraging companies to stop doing business with the National Rifle Association. The justices appeared to be favoring the gun rights group.

The states in Monday’s first case, Murthy v. Missouri, No. 23-411, did not dispute that the platforms were entitled to make independent decisions about what to feature on their sites. But they said the conduct of government officials in urging them to take down what they say is misinformation amounted to censorship that violated the First Amendment.

A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit agreed, saying that officials from the White House, the surgeon general’s office, the Centers for Disease Control and Prevention, and the F.B.I. had most likely crossed constitutional lines in their bid to persuade platforms to take down posts about what they had flagged as misinformation.

The panel, in an unsigned opinion , said the officials had become excessively entangled with the platforms or used threats to spur them to act. The panel entered an injunction forbidding many officials to coerce or significantly encourage social media companies to remove content protected by the First Amendment.

The Biden administration filed an emergency application in September asking the Supreme Court to pause the injunction, saying that the government was entitled to express its views and to try to persuade others to take action.

The court granted the administration’s application , put the Fifth Circuit’s ruling on hold and agreed to hear the case.

Three justices dissented. “Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing,” Justice Alito wrote, joined by Justices Clarence Thomas and Neil M. Gorsuch.

Those same three justices voiced the most skepticism of the Biden administration’s position at Monday’s argument.

Other justices asked about government interactions with the press. Justice Kavanaugh, who served in the White House in the administration of President George W. Bush, said that it was “probably not uncommon for government officials to protest an upcoming story on surveillance or detention policy and say, you know, if you run that it’s going to harm the war effort and put Americans at risk.”

That was perfectly proper, he suggested, adding that it would be a different matter if the request were backed by a threat of an antitrust action.

Justice Kavanaugh said he understood, based on his earlier government service, that there are “experienced government press people throughout the federal government who regularly call up the media and berate them.”

Justice Kagan echoed the point.

“Like Justice Kavanaugh,” she said, “I’ve had some experience encouraging the press to suppress their own speech.”

She sketched out some of those conversations: “You just wrote a bad editorial. Here are the five reasons you shouldn’t write another one. You just wrote a story that’s filled with factual errors. Here are the 10 reasons why you shouldn’t do that again.”

“I mean,” she said, “this happens literally thousands of times a day in the federal government.”

Chief Justice John G. Roberts Jr., another former White House lawyer, registered a lighthearted dissent, to laughter. “I have no experience coercing anybody,” he said.

But he added that the government is not monolithic and that different parts of it may hold and press competing views.

Justice Alito, who has been the subject of critical news coverage, seemed taken by the idea of pushing back against it, wondering aloud whether the court’s public information officer was in the courtroom.

“Maybe she should take a note about this,” he said. “So whenever they write something that we don’t like, she can call them up and curse them out and say ‘Why don’t we be partners? We’re on the same team.’”

What happens next? The court will probably not issue a decision until June.

Now that the arguments in the case are complete, the justices will cast tentative votes at a private conference in the coming days. The senior justice in the majority will then assign the majority opinion to a colleague — or keep it. Draft opinions, most likely including concurrences and dissents, will be prepared and exchanged.

On average, it takes the Supreme Court about three months after an argument to issue a decision. But rulings in a term’s more important cases — and this one qualifies — tend not to arrive until near the end of the term in June, no matter how early they were argued.

There are other reasons to think the decision will not arrive until late June. The case was argued in the court’s next-to-last two-week sitting, and the court will be busy this month and next with arguments on abortion and former President Donald J. Trump’s claim that he is immune from prosecution on charges that he plotted to overturn the 2020 election.

The decision must also be harmonized with rulings in related cases, including ones on whether states may prohibit technology platforms from deleting posts based on the viewpoints they express and whether a state official in New York violated the First Amendment by encouraging companies to stop doing business with the National Rifle Association.

Scholars have given varied explanations for why the biggest cases tend to land in June, no matter when they were argued. One is that justices keep polishing the opinions that will define their legacies until the last possible moment.

A 2015 study in The Duke Law Journal suggested a more personal reason: “The justices, most of whom have busy social schedules in Washington, may want to avoid tensions at their social functions by clustering the most controversial cases in the last week or two of the term — that is, just before they leave Washington for their summer recess.”

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The court is hearing a related case on the N.R.A.

The question in the social media case is in one sense about government power over the internet. But at bottom it is about something more fundamental: striking the right balance between government advocacy for its policies, which is permissible, and coercion backed by threats of punishment, which is not.

The justices will return to that tension in Monday’s second argument, over whether a state official in New York violated the First Amendment by encouraging companies to stop doing business with the National Rifle Association after the 2018 school shooting in Parkland, Fla.

That question is at a general level the same as the one in the social media case, and its answer will also involve finding the constitutional line between persuasion and coercion.

The second case, National Rifle Association v. Vullo, No. 22-842, concerns the activities of Maria Vullo, a former superintendent of the New York State Department of Financial Services. In the aftermath of the school shooting in Parkland, Ms. Vullo said banks and insurance companies should consider whether they wanted to provide services to the group.

The N.R.A. sued, saying Ms. Vullo’s efforts leveraged government power in a way that violated the First Amendment.

A unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit, in New York, ruled against the N.R.A. Judge Denny Chin , writing for the panel, acknowledged that government officials may not “use their regulatory powers to coerce individuals or entities into refraining from protected speech.

“At the same time, however,” he wrote, “government officials have a right — indeed, a duty — to address issues of public concern.”

Ms. Vullo’s actions were on the right side of the constitutional line, Judge Chin wrote. Key documents, he said, “were written in an evenhanded, nonthreatening tone and employed words intended to persuade rather than intimidate.”

In its petition seeking Supreme Court review , the N.R.A. said the appeals court’s ruling could have sweeping consequences.

“The Second Circuit’s opinion below gives state officials free rein to financially blacklist their political opponents — from gun-rights groups to abortion-rights groups to environmentalist groups and beyond,” the petition said.

One sign that the N.R.A. has a plausible First Amendment argument: It is represented by the American Civil Liberties Union . David Cole, the A.C.L.U.’s national legal director, will argue the case on behalf of the gun rights group.

“In this hyper-polarized environment, where few are willing to cross the aisle on anything,” Mr. Cole said, “the fact that the A.C.L.U. is defending the N.R.A. here only underscores the importance of the free-speech principle at stake.”

Charlie Savage

Oral arguments in the case are over.

Fletcher, the Justice Department lawyer, is now back for rebuttal.

Jim Rutenberg

Justice Jackson asks Aguiñaga whether government can’t move against harm, like posts that might lead teens to commit suicide, and can’t tell the platforms to move to reduce the posts. Aguiñaga says the government can call platforms to say there’s a problem, but can’t apply pressure to remove that content.

“Is it your view that the government authorities could not declare those circumstances a public emergency and encourage social media platforms to take down the information that is instigating this problem?” “Your honor, the government absolutely can use the pulpit to say publicly, here’s what we recognize to be a public health issue, emergency. We this is obviously extremely terrible and the public shouldn’t tolerate this. Platforms — we see it’s going on on the platforms — but they can’t call the platforms and say, listen, we really think you should be taking this down because look at the problems that it’s causing.” “If it’s protected speech, your honor, then I think we get closer. But like, look, if you think that that’s if that’s clearly the way you’re asking the question, I understand that the instinct that that may, you know, may not be a First Amendment issue. I guess what I fall back on, your honor, is that at least where the government itself — there is no emergency like this. There’s nothing —” “No, my hypothetical is there is an emergency. My hypothetical is that there is an emergency, and I guess I’m asking you in that circumstance, can the government call the platforms and say this information that you are putting up on your platform is creating a serious public health emergency? We are encouraging you to take it down.” “I was with you right until that last comment, your honor. I think they absolutely can call and say this is a problem. It’s going rampant on your platforms. But the moment that the government tries to use its ability as the government and its stature as the government to pressure them to take it down, that is when you’re interfering with the third-party speech rights.”

Justice Ketanji Brown Jackson asks if the government could actually tell platforms they needed to take down leaked classified information. Aguiñaga, the Louisiana lawyer, says the government could do that. “I think that would be a great example where strict scrutiny would be in the government’s favor.”

“Part of the reason why you might be running into all of these difficulties with respect to the different factual circumstances is because you’re not focusing on the fact that there are times in which the government can, depending on the circumstances, encourage, perhaps even coerce, because they have a compelling interest in doing so. And so that’s why I keep coming back to the actual underlying First Amendment issue, which we can isolate in this case and just talk about about coercion. But I think that you have to admit that there are certain circumstances in which the government can provide information, encourage the platforms to take it down, tell them to take it down. I mean, what about what about the hypo of someone posting classified information? They say it’s my free speech right. I believe that, you know, I got access to this information and I want to post it. Are you suggesting that the government couldn’t say to the platforms, we need to take that down?” “No, your honor, because I think that would be a great example where strict scrutiny would cut in the government’s favor.”

Heightening the problem of the flawed factual record undergirding the litigation, Justice Sotomayor starkly accuses Aguiñaga himself of distorting facts of what happened: “I have such a problem with your brief, counselor. You omit information that changes the context of some of your claims. You attribute things to people who it didn’t happen to — at least in one of the defendants, it was her brother that something happened to, not her. I don’t know what to make of all this because I am not sure how we get to prove direct injury in any way.”

Aguiñaga apologizes if any of the brief is not “as forthcoming” as it should have been.

This exchange between Justice Kagan and Aguiñaga, in which the Louisiana lawyer concedes that it can be OK for the government to provide information to the platforms under some circumstances, shows the problem with having an unreliable factual record compiled by Judge Doughty about what actually happened. Fletcher is citing the district court’s findings to say the government crossed the line into official censorship, but are the specifics accurate?

Aguiñaga goes at a key issue in the government content moderation efforts of the past few years — what began as attempts to address foreign meddling and disinformation moved to cover speech from Americans in 2020, over an election and a pandemic.

In an exchange with Justice Kagan, Aguiñaga, the Louisiana lawyer, identifies a difference from the hypothetical Justice Kavanaugh brought up about government officials raising concerns with a newspaper about publishing an article: That is the government going directly to the speaker. What is “so pernicious” here is that the government is going to a third party — the platforms — and people may never learn about it.

Steven Lee Myers

Aguiñaga describes the communications between officials and the platforms as “unrelenting government pressure” going on outside of the public eye. “Pressuring platforms in back rooms, shielded from public view, is not using a bully pulpit. That’s just being a bully.”

The justices and Fletcher keep referencing a 1963 precedent, Bantam Books, Inc. v. Sullivan . It centered on a state commission in Rhode Island that was empowered to notify distributors of certain books and magazines it considered to be obscene that it had decided the materials were objectionable, request its “cooperation,” and to advise them that the commission had a duty to recommend prosecution of purveyors of obscenity. The Supreme Court ruled that these notices intimidated businesses and resulted in the suppression of the sale of the books and magazines --- an unconstitutional system of informal censorship.

Aguiñaga disputes the Biden administration’s standard for the case: “We don’t need coercion as a theory,” he said. He said the government “cannot induce, encourage or promote” to get private actors to do what government cannot: censor Americans’ speech.

Benjamin Aguiñaga, the solicitor general of Louisiana, is now arguing. Louisiana is one of the Republican-controlled states that brought the lawsuit arguing that the government was coercing social media platforms into taking down posts, amounting to government censorship.

Justice Kavanaugh, a former lawyer in George W. Bush's White House, raises a national-security analogy. He notes that it’s “not uncommon” for government officials to protest to a newspaper an upcoming story on surveillance or detention policy and say, “If you run that, it is going to harm the war effort and put Americans at risk.” The implication is under the lower-court rulings, the government would not be allowed to express such concerns.

Fletcher, the government lawyer, agrees with Justice Kavanaugh that that is an example of a valuable interchange as long as it stays on the persuasion side of the line. “Platforms — newspapers — want to know if their publishing a story might put lives at risk. And they don’t have to listen to the government, but that’s information that they can consider when exercising their editorial judgment.”

Justice Kavanaugh adds that it would become problematic coercion if the government tacked on that “And if you publish the story we’re going to pursue antitrust action against you.” Fletcher agrees again with him: “Huge problem, yeah.”

Fletcher argues that the social media platforms are large companies with sufficient clout to rebuff government efforts to influence them. In fact, when university researchers working with the government flagged misinformation about the 2020 election, the platforms refused to do anything two-thirds of the time .

Justice Kavanaugh pivots back to the Biden “killing people” line and notes that in a national security context there is some history of the government warning media outlets that their stories threaten to endanger Americans’ lives.

Justice Kagan floated the idea of resolving the case by saying the plaintiffs were not entitled to an injunction because they could not show they faced an imminent threat of future harm at the time of litigation, without getting into past content moderation disputes. Fletcher, the government lawyer, agrees that would be the narrowest and easiest way to resolve the matter.

Fletcher, the government lawyer, argues that government officials can persuade a private party to do something the private party is lawfully allowed to do, even when the government could not do that thing itself. He gives various examples: when government officials called on colleges to do more about antisemitic speech on campuses after the Oct. 7 attacks in Israel, encouraging parents to monitor their children’s cell phone usages, or internet companies to watch out for child sexual abuse on their platforms, even if the Fourth Amendment would prevent the government from doing that directly. Telling social media companies that the government thinks their algorithms or posting of certain things are causing harm is the same, he said.

Here’s the moment Justice Gorsuch was referring to regarding the president’s “killing people” line.

Justice Gorsuch asks if President Biden’s statement that the platforms were “killing people” by allowing misinformation to flow in the middle of the pandemic would amount to coercion. Fletcher says the president made clear afterward it was “exhortation, not threat.”

Alito is saying he can’t imagine the federal government cajoling and threatening print media. Fletcher notes that there is that sort of back and forth with the press, but Alito is getting at the central unsettled element in all of these cases. The platforms are something different, they provide pipelines, but through their algorithms and rules they are also applying their own version of editorial standards.

Michael D. Shear and David McCabe

Here’s how a Trump-appointed judge saw the Biden administration pressuring companies to censor speech.

This First Amendment case is a flashpoint in a broader effort by conservatives to document what they contend is a liberal conspiracy by Democrats and tech company executives to silence their views, and it taps into fury on the right about how social media companies have treated stories about the origins of Covid, the 2020 election and Hunter Biden, the president’s son.

The final outcome could shape the future of First Amendment law in a rapidly changing media environment and alter how far the government can go in trying to prevent the spread of potentially dangerous claims, particularly in an election or during emergencies like a pandemic.

The government’s actions at the heart of the case were intended largely as public health measures during the coronavirus pandemic. But a federal judge in Louisiana framed his ruling back in July through the filter of partisan culture wars — asking whether the government violated the First Amendment by unlawfully threatening the social media companies to censor speech that the Biden administration found distasteful and potentially harmful to the public.

In his ruling, Judge Terry A. Doughty described dozens of interactions between the administration and social media companies, including how two months after President Biden took office, his top digital adviser had emailed officials at Facebook urging them to do more to limit the spread of “vaccine hesitancy” on the social media platform.

Judge Doughty also outlined how officials at the Centers for Disease Control and Prevention had held “weekly sync” meetings with Facebook, once emailing the company 16 “misinformation” posts. And in the summer of 2021, he wrote, the surgeon general’s top aide had repeatedly urged Google, Facebook and Twitter to do more to combat disinformation.

The case sets up a showdown between the justices and a conservative appeals court.

The appeals court that partly upheld limits on the Biden administration’s communications with social media companies has a reputation for issuing decisions too conservative for the Supreme Court, which is itself tilted to the right by a six-justice supermajority of Republican appointees.

Of the appeals court’s 17 active judges, only five were appointed by Democratic presidents. Six members of the court were appointed by President Donald J. Trump.

The court, the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, hears appeals from federal trial courts in Louisiana, Mississippi and Texas. Those forums often attract ambitious lawsuits from conservative litigants correctly anticipating a favorable reception, and rulings from trial judges in those states are often affirmed by the Fifth Circuit.

But when those cases reach the Supreme Court, they sometimes fizzle out. An attack on the constitutionality of the Consumer Financial Protection Bureau, endorsed by three Trump appointees on the Fifth Circuit, did not seem to fare well before the justices when it was argued in October. Another, in which the Fifth Circuit struck down a federal law barring domestic abusers from carrying guns, was also met with skepticism .

Other rulings from the Fifth Circuit, on issues like immigration , abortion pills and so-called ghost guns , have also met with at least tentative disapproval from the Supreme Court, suggesting that the appeals court is out of step with the justices.

At a news briefing in September, Irv Gornstein, the executive director of Georgetown’s Supreme Court Institute, said the Fifth Circuit had staked out positions that “at least some of the center bloc of conservatives aren’t going to be able to stomach.”

He added that some of the rulings by the Fifth Circuit were “delivered from Crazy Town” and that “it would be shocking if at least some of those decisions are not reversed.”

The case is one of several about the intersection of free speech and technology on the court’s docket.

The Supreme Court hears First Amendment cases fairly often. But it has never before considered as many cases on what the Constitution has to say about free speech in the internet era as it will in its current term, set to end in June.

Monday’s argument will be the fifth one since October considering the fundamental question of the scope of government power over social media platforms. The decision in that case and the four others will collectively mark the boundaries of free expression in the digital age.

Last month, the Supreme Court considered two cases on whether Florida and Texas could limit prominent social media companies from moderating content on their platforms, appearing skeptical of the breadth of laws that had been enacted in an effort to shield conservative voices on technology sites.

On Friday, the court, in two unanimous rulings, set requirements for when elected officials could block people from their social media accounts.

The court’s decisions in the five cases will have broad political and economic implications. A ruling that tech platforms have no editorial discretion to decide which posts to allow, for instance, would expose users to a greater variety of viewpoints, but it would almost certainly amplify the ugliest aspects of the digital age, including hate speech and disinformation.

Supreme Court seems favorable to Biden administration over efforts to combat social media posts

W ASHINGTON (AP) — The Supreme Court seemed likely Monday to side with the Biden administration in a dispute with Republican-led states over how far the federal government can go to combat controversial social media posts on topics including COVID-19 and election security in a case that could set standards for free speech in the digital age.

The justices seemed broadly skeptical during nearly two hours of arguments that a lawyer for Louisiana, Missouri and other parties presented accusing officials in the Democratic administration of leaning on the social media platforms to unconstitutionally squelch conservative points of view.

Lower courts have sided with the states, but the Supreme Court blocked those rulings while it considers the issue.

Several justices said they were concerned that common interactions between government officials and the platforms could be affected by a ruling for the states.

In one example, Justice Amy Coney Barrett expressed surprise when Louisiana Solicitor General J. Benjamin Aguiñaga questioned whether the FBI could call Facebook and X (formerly Twitter) to encourage them to take down posts that maliciously released someone's personal information without permission, the practice known as doxxing.

“Do you know how often the FBI makes those calls?” Barrett asked, suggesting they happen frequently.

Justice Brett Kavanaugh also signaled that a ruling for the states would mean that “traditional, everyday communications would suddenly be deemed problematic.”

The case Monday was among several the court is considering that affect social media companies in the context of free speech. Last week, the court laid out standards for when public officials can block their social media followers . Less than a month ago, the court heard arguments over Republican-passed laws in Florida and Texas that prohibit large social media companies from taking down posts because of the views they express.

The cases over state laws and the one that was argued Monday are variations on the same theme, complaints that the platforms are censoring conservative viewpoints.

The states argue that White House communications staffers, the surgeon general, the FBI and the U.S. cybersecurity agency are among those who coerced changes in online content on social media platforms.

Aguiñaga put the situation in stark terms, telling the justices that “the record reveals unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans.”

He said that calls merely encouraging the platforms to act also could violate speech rights, responding to a hypothetical situation conjured by Justice Ketanji Brown Jackson, about an online challenge that “involved teens jumping out of windows at increasing elevations.”

Jackson, joined by Chief Justice John Roberts, pressed the Louisiana lawyer about whether platforms could be encouraged to remove such posts.

“I was with you right until that last comment, Your Honor,” Aguiñaga said. “I think they absolutely can call and say this is a problem, it’s going rampant on your platforms, but the moment that the government tries to use its ability as the government and its stature as the government to pressure them to take it down, that is when you’re interfering with the third party’s speech rights.”

Justice Samuel Alito appeared most open to the states' arguments, at one point referring to the government's “constant pestering of Facebook and some of the other platforms.” Alito, along with Justices Neil Gorsuch and Clarence Thomas, would have allowed the restrictions on government contacts with the platforms to go into effect.

Justice Department lawyer Brian Fletcher argued that none of the actions the states complain about come close to problematic coercion and that the federal government would lose its ability to communicate with the social media companies about antisemitic and anti-Muslim posts, as well as on issues of national security, public health and election integrity.

The platforms are large sophisticated actors with no reluctance to stand up to the government, “saying no repeatedly when they disagree with what the government is asking them to do,” Fletcher said.

Justice Elena Kagan and Kavanaugh, two justices who served in the White House earlier in their careers, seemed to agree, likening the exchanges between officials and the platforms to relationships between the government and more traditional media.

Kavanaugh described “experienced government press people throughout the federal government who regularly call up the media and -- and berate them.”

Later, Kagan said, “I mean, this happens literally thousands of times a day in the federal government.”

Alito, gesturing at the courtroom's press section, mused that whenever reporters “write something we don't like,” the court's chief spokeswoman “can call them up and curse them out and say...why don’t we be partners? We’re on the same team. Why don’t you show us what you’re going to write beforehand? We’ll edit it for you, make sure it’s accurate.”

Free speech advocates said the court should use the case to draw an appropriate line between the government's acceptable use of the bully pulpit and coercive threats to free speech.

“We’re encouraged that the Court was sensitive both to the First Amendment rights of platforms and their users, and to the public interest in having a government empowered to participate in public discourse. To that end, we hope that the Court resolves these cases by making clear that the First Amendment prohibits coercion but permits the government to attempt to shape public opinion through the use of persuasion,” Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University, said in a statement.

A panel of three judges on the New Orleans-based 5th U.S. Circuit Court of Appeals had ruled earlier that the Biden administration had probably brought unconstitutional pressure on the media platforms. The appellate panel said officials cannot attempt to “coerce or significantly encourage” changes in online content. The panel had previously narrowed a more sweeping order from a federal judge, who wanted to include even more government officials and prohibit mere encouragement of content changes.

A divided Supreme Court put the 5th Circuit ruling on hold in October, when it agreed to take up the case.

A decision in Murthy v. Missouri, 23-411, is expected by early summer.

Home — Essay Samples — Social Issues — Freedom of Speech — Freedom Of Speech And Social Media

Freedom of Speech and Social Media

• Categories: Effects of Social Media Free Speech Freedom of Speech

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Words: 1064 |

Published: Feb 8, 2022

Words: 1064 | Pages: 2 | 6 min read

Works Cited

• Caplan, L. (2019, October). Stress Test for Free Speech. Harvard Magazine. https://www.harvardmagazine.com/2019/10/stress-test-for-free-speech
• Crouch, I. (2017, September 19). Is Social Media Ruining Comedy? The New Yorker. https://www.newyorker.com/culture/cultural-comment/is-social-media-ruining-comedy
• Daseler, G. (2018, June 11). The Internet’s Web of Lies. The American Conservative.
• First Amendment of the U.S. Constitution. (n.d.). National Constitution Center.
• Freedom of Speech. (2022, February 28). Legal Information Institute.
• Greenwald, G. (2021, January 11). Silicon Valley’s Authoritarian Crackdown on Free Speech. Substack.
• Griffith, E. (2021, May 6). Facebook Upholds Ban on Donald Trump’s Account. The New York Times. https://www.nytimes.com/2021/05/05/technology/facebook-trump-ban-upheld.html
• Lax, R. (2022, January 6). Trump’s Twitter Ban Shows Why Congress Must Act to Protect Free Speech Online. The Hill.
• Rosen, J. (2018, March 13). Fighting Fake News on Social Media. The New York Times.
• Wadhwa, V. (2019, September 19). Why Facebook’s Libra Cryptocurrency Is In Trouble. Forbes.

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• Anti-Social Media Behavior, Free Speech and Governmental Liability II –Supreme Court Ruling in Lindke v. Freed

In my prior article , I discussed Lindke v. Freed , in which a social media user brought action under § 1983 against a city manager, alleging that the manager violated the user’s First Amendment rights by deleting his comments on a social media page that the city manager operated and by blocking the Plaintiff from the page. That article reviewed the case, including the background leading to the lawsuit and the holding by the Sixth Circuit, in anticipation of the Supreme Court’s ruling. On March 15, 2024, the Supreme Court published its decision, in which it unanimously held that, in the context of social media forums, the state-action doctrine requires a Plaintiff to show that the Defendant had both (1) actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. This article will discuss the Supreme Court’s rationale and the impact of its ruling.

Substance over Style

Justice Barret, in writing for the unanimous court, conceded from the outset that “[i]n the run-of-the-mill case, state action is easy to spot . . . [s]ometimes, however, the line between private conduct and state action is difficult to draw.” A unique feature of this case is that it required the court to analyze whether a state official engaged in state action or functioned as a private citizen rather than whether a nominally private person engaged in state action for purposes of § 1983.  As Justice Barret explained, the Court has had little occasion to consider how the state-action requirement applies in such circumstances. While public officials can act on behalf of the State, they are also private citizens with their own constitutional rights. As Freed did not relinquish his First Amendment rights when he became city manager for Port Huron, Lindke could not simply “hang his hat” on Freed’s status as a state employee. So long as Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights; rather, he exercised his own.

This distinction between private conduct and state action turns on substance, rather than labels, and demands a fact-intensive inquiry.  This is especially important in the context of social media, which can be used “for personal communication, official communication, or both – and the line between the two is often blurred.” Nevertheless, relying upon precedent articulating principles that govern analogous cases, the Court held that a public official’s social media activity constitutes state action under § 1983 only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.

The first prong of this test is grounded in the “bedrock requirement” that the conduct allegedly causing the deprivation of a federal right be “fairly attributable” to the State. “Private action – no matter how ‘official’ it looks – lacks the necessary lineage.” Like the Sixth Circuit, the Supreme Court rejected Lindke’s argument that the court should focus on the page’s appearance or function.  The Court provided that while “Lindke imagines that Freed can conjure the power of the State through his own efforts . . . the presence of state authority must be real, not a mirage.” Importantly, Lindke must show more than that Freed had some authority to communicate with residents on behalf of Port Huron.  Instead, the alleged censorship must be connected to speech on a matter within Freed’s authority. If the plaintiff cannot make this threshold showing, then he cannot establish state action.

As to the second prong, requiring that the government official purported to exercise that authority when he spoke on social media, the Supreme Court noted that Freed’s page was neither designated as “personal” nor “official,” which raised the prospect that it was “mixed-use” – a place where he made some posts in his personal capacity and others in his capacity as city manager.  In such situations, a reviewing court must categorize posts based on their content and function. Where there remains doubt about a given, additional factors might cast light – “for example, an official who uses government staff to make a post will be hard-pressed to deny that he was conducting government business.” Regardless, the Court emphasized that “[l]est any official lose that right, it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.” The Court concluded by providing that, to the extent that the test the Supreme Court relied upon differs from the one applied by the Sixth Circuit, the Supreme Court vacated the appellate court’s judgment and remanded the case for further proceedings consistent with the Supreme Court’s opinion.

Within this decision, the Supreme Court not only provided a clear two-prong test with regard to § 1983 actions in the social media context but also provided additional guidance for government officials moving forward.  First, a label ( e.g. , “this is the personal page of . . . ”) or disclaimer ( e.g. , “the views expressed are strictly my own”) can serve to give a social media page a clear context, lending to a heavy (albeit not irrebuttable) presumption that all the posts thereon were personal.  Second, the Court noted that the nature of the technology determines the scope of state-action analysis. In this case, Freed performed two actions to which Lindke objected: the deletion of comments and blocking from commenting.  With regards to the deletion of specific comments, the only relevant posts are those from which the comments were removed. Conversely, given that blocking someone would operate on a page-wide basis, a court would have to consider whether a governmental official engaged in state action with respect to any post on which a plaintiff wished to comment. This only furthers the notion that the state-action doctrine demands a fact-intensive inquiry.  The Court concludes its decision with a word of caution – “[a] public official who fails to keep personal posts in a clearly designated personal account . . . exposes himself to greater potential liability.” To be safe, Government officials would do well to heed the Supreme Court’s warning.

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