The First Amendment shapes how Silicon Valley thinks about the design, development and implications of technology. Its legal protections are broad in scope but limited in geography; they only apply in the United States.
Publishers and platforms will increasingly need to consider how different expectations of free speech inform their operations.
Constitutional law often lags behind technology, taking time to adapt and evolve as historic concepts are applied to new situations. Although social media has been a central part of our political conversation, courts are only now starting to specifically consider how our rights apply online.
State courts in New Jersey recognize that speech cannot be abridged by “restrictive and oppressive conduct by private entities”—like social media platforms—but other states only prevent the government from regulating speech, allowing private entities to do as they please.
A significant case in July 2019 clarified Twitter’s status as a public forum—and how the First Amendment applies on the platform. The Second Circuit Court of Appeals affirmed a lower court ruling in July that President Donald Trump could not block followers on Twitter. The three-judge panel held that “the First Amendment does not permit a public official…to exclude persons from an otherwise‐open online dialogue because they expressed views with which the official disagrees.” The ruling is a major step toward defining the rules of engagement for free speech on the internet. But there are still deep, unresolved questions.
For example, does the First Amendment protect bots or other synthetic media? A California law went into effect in July requiring that any bot that tries to influence purchasing or voting behavior identify itself. The Electronic Frontier Foundation and others worried that an earlier version of the bill would have gone too far in stifling speech because of careless definitions of the technology.
While the First Amendment’s protections in the U.S. are generally broad, its scope is limited in an interconnected world: Facebook has little legal exposure in the U.S. because of the intersection of First Amendment rights and protections from Section 230 of the Communication Decency Act, but it could be liable under Germany’s hate speech laws. Even in the offline world there is no global understanding of how to protect “free speech,” and that makes defining online rights even harder.
Debates about the First Amendment boil down to what “can” be said. Expect more decisions that wrestle with clarifying what is a public forum in the public sphere and whether A.I.-generated text, video and images are legally protected speech. And there will be much murkier debates about what “should” be published.
Paying customers will naturally be more invested in decisions made by the organization, and those choices — whether it’s sharing or withholding a fact, opinion or photo — may only fuel the debate.
American Civil Liberties Union, Electronic Frontier Foundation, European Union, Federal Communications Commission, Federal Trade Commission, Knight First Amendment Institute at Columbia University, U.S. Supreme Court.
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