The complexity of the latest unilateral actions from social media platforms whereas individuals could be censored, temporarily restricted, or finally banned from the social media activities is bringing also the discussion on whether or not those actions are violating the individual freedom of speech and how far the individual is allowed to exercise their human rights throughout the internet.
Nadine Strossen is a professor of law at New York Law School, and former head of the American Civil Liberties Union (ACLU). In a dissertation about the same issue Prof. Strossen stated that, under the Constitutional Bill of Rights and the First Amendment’s freedom of speech protection, the individual doesn’t have that right. Because the Constitution is the rule of law to protect the individual rights from the government actions, thus it is not aapplied in the same way from the actions of a private organization. Because “they are private sector entities… therefore, they have no First Amendment obligation to protect your freedom of speech.” (1)
A District Court in California, in FAN vs Facebook (2019) ruled that “Facebook’s conduct in removing a Russia news distribution organization’s, Facebook account and page did not violate the First Amendment’s protection of freedom of expression and that its conduct was immunized from civil suit by US legislation”.(2)
This analysis is supported also by the UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS ruling on Nyabwa v. Facebook, (2018 U.S. Dist. LEXIS 13981, Civil Action No. 2:17-CV-24, *2 (S.D. Tex.) (Jan. 26, 2018), stated that; “the First Amendment governs only governmental limitations on speech.” (As cited by Hudson, D. L.) (3)
However, David L. Hudson Jr. (Justice Robert H. Jackson Legal Fellow for the Foundation for Individual Rights in Education (FIRE). He also is a First Amendment Fellow for the Freedom Forum Institute, and author), in his written opinion for the American Bar Association (ABA) is exposing another point of view about the protection of the freedom of speech. The base for his opinion is resting on the doctrines of “public/private distinction” and the “state action” doctrine (et.al). This two legal concepts are important to address any changes related to the expansion of civil rights protection beyond the cyberspace.
Hudson, Jr use the incident where the football players following the example of Colin Kaepernick became a social movement based in their freedom of speech. If a private enterprise like NFL can be used to influence the people rights, there should be also more than just an expression when the same private entity is in violation of people’s rights. At this point, he stated that “two key justifications for robust protection of the First Amendment right to freedom of expression are the marketplace of ideas and individual self-fulfillment. These justifications don’t require governmental presence. Powerful private actors can infringe on free expression rights just as much as public actors.” The bottom line here is that when a Big Tech industry is engaged in the censorship of others’ ideas impeding or restricting the liberty of an individual self fulfillment, is similarly overreaching the governmental infringement of free speech.
The Civil Rights Cases of 1883 (109 U.S. 3, 11 (1883)) established the ‘government action’ doctrine, whereas plaintiffs claimed the Equal Protection Act (Amendment 13) against the exclusion of African-American people from the use of privately owned facilities opened to the public on the basis of race (such as movie theaters, separate public bathrooms, inns, amusement parks, and separate cars on the trains). The final decision of the court stated that such exclusions do not violated the Equal Protection Clause of the Fourteenth Amendment, responding by a written resolution: “…it is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment.”
The Case of Plessy vs Ferguson (1986), ruled the doctrine of “Separate but Equal” to justify the separation of public facilities and services in a racial based decision. However the dissenting voice of Justice John Marshall Harlan I was the initial reaction for government taking actions against the violations of civil rights. Justice Marshall said that the inaction of government allowing a free pass to discrimination against the people by private corporations and individuals, “in the exercise of their public or quasi-public functions, is a badge of servitude”. (et.al.)
In the past the free expression of ideas or beliefs were taking place in the plazas, schools, or any venue in which people use to gather the information from public speakers. Then the radio and TV arrived to amplify the spectrum of communication to unprecedented numbers. Now the social network like Facebook, Twitter, YouTube, is not only reaching more audiences, but is putting the tools in the hands of everyone who can get access to the internet. This reality was recognized by the U.S Supreme Court in Packingham v. North Carolina (2017): “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.” (Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017).) (et.al.)
The revolution of ideas, beliefs, or just a simple thought shared in the internet is the natural exercise of the natural human right of free of thoughts and consciences. The Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217 A) as a common standard of achievements for all peoples and all nations. It sets out, for the first time, fundamental human rights to be universally protected and it has been translated into over 500 languages (4). The Article 18 of the Universal Declaration of Human Rights:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
(Excerpted from UN The Declaration of Human Rights)
Although every country have their own jurisdictional civil rights, it’s imperative today in USA to adjust and take actions in order to expand the applicability of the 1st Amendment accordingly to the new reality.
(1)Strossen, N. Does the First Amendment Apply to Social Media Companies? Talksonlaw.com Retrieved from; https://www.talksonlaw.com/briefs/does-the-first-amendment-require-social-media-platforms-to-grant-access-to-all-users
(2) Global Freedom of Expression, Columbia University (2019) FAN vs Facebook Case Analysis retrieved from; https://globalfreedomofexpression.columbia.edu/cases/fan-v-facebook/
(3) Hudson D. L. In the Age of Social Media, Expand the Reach of the First Amendment; Human Rights Magazine, ABA. (Vol 43 No. 4) Retrieved from: https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/in-the-age-of-socia-media-first-amendment/
(4) United Nations, The Declaration of Human Rights. Retrieved from; https://www.un.org/en/universal-declaration-human-rights/