Is Social Media Becoming the New Speech Governors?

By TAP Staff Blogger

Posted on July 14, 2017


In a recent New York Times op-ed piece, Colorado Law professor Margot Kaminski discusses the role social media networks like Facebook and Twitter play in freedom of speech, access to information, and protection of privacy. Written with coauthor Kate Klonick, “Facebook, Free Expression and the Power of a Leak” states: “In some ways, online platforms can be thought of as the new speech governors: They shape and allow participation in our new digital and democratic culture in ways that we typically associate with governments.”


Here are mission statements from some leading community platforms:

  • Facebook: “Give people the power to build community and bring the world closer together.”
  • Twitter: “To give everyone the power to create and share ideas and information instantly, without barriers.”
  • YouTube: “Our mission is to give everyone a voice and show them the world.”
  • Reddit: “Our mission is to help people discover places where they can be their true selves, and empower our community to flourish.”

‘Build community’ and ‘share ideas’ are noble undertakings. Yet, alongside online communities that enable civic engagement or hold human rights violators to account (see “6 Ways Social Media Is Changing the World”), there are calls for social media networks to safeguard their sites from the promotion of terrorism, fake news, and hateful rhetoric.


How and why these platforms operate to moderate speech is largely unknown. Social media sites are not bound by the First Amendment to protect user speech. Online platforms strive to provide communication and sharing channels for their users. But ensuring an inclusive and safe online experience is as individual as their terms of use and privacy policies.


Facebook, Free Expression and the Power of a Leak” discusses the importance of transparency into how social online platforms police, or regulate, their users’ content. Below are a few excerpts.


Where First Amendment law protects speech about public figures more than speech about private individuals, Facebook does the opposite. If a user calls for violence, however generic, against a head of state, Facebook deems that a credible threat against a “vulnerable person.” It’s fine to say, “I hope someone kills you.” It is not fine to say, “Somebody shoot Trump.” While the government cannot arrest you for saying it, Facebook will remove the post.


These differences are to be expected. Courts protect speech about public officials because the Constitution gives them the job of protecting fundamental individual rights in the name of social values like autonomy or democratic self-governance. Facebook probably constrains speech about public officials because as a large corporate actor with meaningful assets, it and other sites can be pressured into cooperation with governments.


Unlike in the American court system, there’s no due process on these sites. Facebook users don’t have a way to easily appeal if their speech gets taken down. And unlike a government, Facebook doesn’t respond to elections or voters. Instead, it acts in response to bad press, powerful users, government requests and civil society organizations.


That’s why the transparency provided by the Guardian leak is important. If there’s any hope for individual users to influence Facebook’s speech governance, they’ll have to know how this system works — in the same way citizens understand what the Constitution protects — and leverage that knowledge.


Read the full article: “Facebook, Free Expression and the Power of a Leak.”