By Ben L. Culpepper
After January 6, 2020, big tech took unprecedented measures to prevent the spread of misinformation on their platforms.[1] These measures included banning then-president Trump from using their websites, along with Amazon entirely dispensing of Parlor, a right-wing social media alternative to Twitter.[2] However, the role of big tech companies such as Twitter and the policing of information raises new legal questions.[3] Those being censored or flagged as spreading misinformation argue their first amendment right to free speech is being breached.[4] On the other hand, advocates of monitoring what information can be posted to Twitter argue Twitter is not doing enough to censor misinformation.[5] And, behind the scenes of it all, the federal government looms in the background pressuring big tech to cut out misinformation or face federal legislation punishing big tech.[6]
The journey to the censorship levels of January 6, 2020, started from a very different place. In 2011, relatively early in Twitter’s existence, a reporter named Anita Sarkeesian was the subject of terrible threats on the company’s platform.[7] These threats included specific threats of rape, physical violence, and outright racism in general.[8] The online trolls even made a video game depicting Sarkeesian and giving players the option to punch her in the face.[9] According to Sarkeesian, when she reported the threats to Twitter, all Twitter mustered was “The account [reported] is not currently in violation of the Twitter Rules.”[10] Only when Sarkeesian publicly tweeted Twitter’s nonchalant response did Twitter step in and take action.[11]
Today, Twitter has three specific types of misinformation labels that the company attaches to tweets that it deems are “false and misleading.”[12] Twitter has rapidly increased its speech monitoring policies in the wake of public and federal criticism, almost instantly flagging potentially false or misleading information on its platform.[13] This is a drastic change from where the company began in 2011 during Sarkeesian’s story.[14] Nadine Strossen, professor of law at New York Law School, argues that the first amendment of our Constitution only protects against free speech violations that come from the government.[15] Accordingly, Strossen asserts that there is no first amendment violation in Twitter monitoring free speech.[16] Thus, Twitter, as a private sector entity, has no obligation to protect any freedom of speech.[17] In fact, quite the opposite, she argues. Twitter can freely remove those who violate its terms of use whenever Twitter pleases.[18]
On the other hand, those being censored and advocates of total free speech on social media platforms argue that Twitter engages in selective enforcement, suggesting political motives.[19] Free speech proponents assert that big tech companies have a Constitutional obligation to allow for the free flow of information on their platforms.[20] Otherwise, Congress, through regulatory threats and statutory inducements, is merely using big tech to accomplish what it itself is unable to do: cut out speech it deems false or misleading.[21] To support this claim, free speech advocates point to threats Democratic lawmakers in Congress have issued at Twitter.[22] Furthermore, Section 230 of the Communications Decency Act allows tech companies to censor what may otherwise be Constitutionally protected speech without facing legal consequences.[23] Free speech advocates assert that Section 230, paired with Democratic threats, amounts to state action via private entities which infringes on the rights guaranteed in our Constitution.[24]
As Twitter and other big tech companies continue to ramp up their speech monitoring policies, the big question looming in the background grows in size and shape: is big tech acting as a medium for state action, or is it merely trying to enforce policies against false and misleading information? This is a fine line big tech has been treading carefully, and if Congress decides big tech isn’t doing enough, federal statutory regulations are just around the corner.
[1] Jessica Guynn, President Trump Permanently Banned from Twitter over Risk He Could Incite Violence, USA Today (Jan. 8, 2021), https://www.usatoday.com/story/tech/2021/01/08/twitter-permanently-bans-president-trump/6603578002/.
[2] Glenn Greenwald, Congress Escalates Pressure on Tech Giants to Censor More, Threatening First Amendment (Feb. 20, 2021), https://greenwald.substack.com/p/congress-escalates-pressure-on-tech.
[3] Id.
[4] Vivek Ramaswamy & Jed Rubenfield, Save the Constitution from Big Tech, Wall St. J. (Jan. 11, 2021), https://www.wsj.com/articles/save-the-constitution-from-big-tech-11610387105.
[5] Greenwald, supra note 2.
[6] Id.
[7] Emily Greenhouse, Twitter’s Free-Speech Problem, Science and Tech (Aug. 1, 2013), https://www.newyorker.com/tech/annals-of-technology/twitters-free-speech-problem.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Barbara Ortutay, Twitter Rolls Out Redesigned Misinformation Warning Labels, ABC News (Nov. 16, 2021), https://abcnews.go.com/Technology/wireStory/twitter-rolls-redesigned-misinformation-warning-labels-81212172.
[13] Id.; see Greenwald, supra note 2.
[14] See Greenhouse, supra note 7.
[15] Nadine Strossen, Does the First Amendment Apply to Social Media Companies?, Talks on Law (Mar. 21, 2020), https://www.talksonlaw.com/briefs/does-the-first-amendment-require-social-media-platforms-to-grant-access-to-all-users.
[16] Id.
[17] Id.
[18] Id.
[19] Ramaswamy, supra note 4.
[20] Id.
[21] Id.
[22] Id. (quoting Louisiana Representative Cedric Richmond “We’re going to make it swift, we’re going to make it strong, and we’re going to hold them very accountable,” and New York Representative Jerry Nadler “Let’s see what happens by just pressuring them.”).
[23] Id.
[24] Id.
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