First Amendment Interpretation in the Context of Social Media Censorship

What is the First Amendment? 

The First Amendment provides United States citizens with six freedoms. The freedom of religion, the freedom from religion, freedom of speech, freedom of the press, the right to petition the government, and freedom of assembly. 

Free Speech Debate

Discussions of reforming Section 230 of the Communications Decency Act of 1996 are taking place due to the increasing problem of censorship in relation to free speech. 

 

47 U.S.C. Section 230 (c)(1) establishes that social media platforms and services cannot be punished for the content on their platform because they cannot be held to the same scrutiny as that of a publisher. Section 230 (c)(2) grants permission to social media platforms and services to moderate what content is allowed on the platform through censorship and content moderation algorithms. 

 

Viewpoint 1: Section 230 Reform

One side of the debate wants to reform 47 U.S.C. Section 230, restricting media platforms’ ability to censor users. This reform calls for increased accountability to be held toward the social media platforms for their responsibility of societal impact. The reform would also allow all types of legal speech without the threat of censorship. Users would be allowed to participate in the free discussion as is stated through the Marketplace of Ideas theory, proposed by John Stuart Mill. 

 

With an increasing generation of misinformation, fake accounts, and censorship actions, the public is becoming frustrated with the media’s handling of these issues. Those in favor of reform want to stop censorship as they feel targeted due to their political viewpoint and are disappointed with the lack of due process when censored. 

 

Viewpoint 2: Maintain Section 230

An opposing view to Section 230 reform, aims to maintain the law, as it is written. This argument is backed by private corporation statutes that grant private actors First Amendment rights. Those arguing this point, reference the Santa Clara v. Southern Pacific Railroad case of 1886 that established “corporate personhood,” allowing corporations the same First Amendment protections as those of private individuals.  

 

Those in favor of this argument believe that private corporations should maintain their special rights. They argue that changing the current statute would disrupt the current organization of the corporate business. We would then have to distinguish a new meaning for private corporations. 

 

How should we interpret Section 230 and the Free Speech Clause of the First Amendment?

For modern-day interpretation, in the context of social media and free speech, research points to the precedent case of Lovell v. City of Griffin (1938) where the Supreme Court ruled that individuals do not need permission to distribute and publish information. The court’s decision was based on a negative notion, that requirements to obtaining a permit would make speech vulnerable to censorship. The case highlighted the Supreme Court’s disapproval of censorship of speech, during this time period.

 

Section 230(c)(2) reform would clarify the way that the Supreme Court should interpret modern cases involving social media censorship. There are variations of interpretations of the First Amendment in regard to social media issues. The court should interpret the First Amendment, specifically, freedom of speech and to the press, as the right to express freely within the limits of legal speech. The court should reference Lovell v. City of Griffin when interpreting the law. Therefore, social media platforms would not have the right to censor users nor their content based on vague restrictions, set by private individuals. Legal speech should be allowed and encouraged in order to allow users to have access to information, to opposing ideologies, and to publicly express one’s opinion. Interpretation of the law should be based on historical court cases and the context of the modern era.