Laurence Tribe: First Modification fantasies within the social media debate
Private social media platforms like Facebook have exploded with wealth and influence. These companies have relied on an opaque business model that arms a fantasy version of the First Amendment to justify offering users enticingly convenient forms of personalized information exchange. Of course, we now know that these services often manipulate ordinary people’s appetites, break down their habits, and take advantage of the resulting profiles by targeting what propaganda means to those who are most likely to suck it up, spread it, and end up harmed by it.
The most recent brouhaha about Facebook’s exile from President TrumpDonald TrumpCaitlyn Jenner Says Election Was Not “Stolen”, Calling Biden “Our President” Overnight Health Care: FDA Approves Pfizer Vaccine For Adolescents Biden Government Raises LGBTQ Health Limits Overnight Defense: US Fires 30 Warning shots on Iranian boats | The attack in Kabul increases fear of the fate of Afghan women Democratic Party leaders are pushing Biden to rejoin Iran and using a self-appointed group of overseers to take responsibility for the harmful lies Trump and his followers spread on his platform – and the deadly uprising they pulled him off with – seems likely to be just the first in a series of being showdowns with people like Trump, who has to keep trying to get back on Facebook. The controversy over Facebook’s actions (or lack thereof) may be the latest in a series of close encounters with the death of democracy. Since we may not survive the next such encounter, Americans need to understand how Facebook and other social media platforms are hiding behind a fictional report on the First Amendment designed to protect them from essential government regulations.
One type of regulation these platforms currently fear is exposure to civil claims that are regularly confronted by other media outlets performing similar editorial roles to decide what to communicate and whose opinions to publish. Under Section 230 of the Communications Decency Act, these platforms are nearly immune to the harm that is foreseeable caused by their reckless or deliberate editorial decisions. The typical response to the growing demand for a re-examination of this immunity, or to virtually any other regulatory proposal that would require platform owners to assert their social responsibility claims, is an always unresolved appeal to the first change.
The central myth of the platform owners is based on the emotionally resonant argument that starting a user from a social media platform such as Facebook, Twitter or YouTube somehow violates the user’s freedom of speech according to the first change. The driving force behind this argument is the fear of victimization: if they manage to achieve a figure as powerful as Trump, they can certainly do it to you.
Despite all its shortcomings, the constitution has worked with some success for more than two centuries, precisely because, with very few exceptions, it is just a meta-law that regulates the law itself. It’s the kind of law that restricts the laws governments make and the decisions they make, not the kind of law that tells you and me (or the owners of social media platforms) what everyone does of us may or may not do. Although Facebook sometimes seems to see its privately owned company as a government of its own, and even refers to its self-created oversight body as a “supreme court,” nothing in the Constitution suggests that an individual, least of all a government official, or a former government official with plans to return to power has the first right to use someone else’s private property as a platform for influencing the widest possible audience. If the Constitution has committed itself to regulating private conduct, as it did with the 18th Amendment during the Prohibition, it was a pathetic failure and had to be reversed, as was the case when the 18th Amendment was repealed by the 21st Amendment Change was the case.
However, the reflection of the thesis that the first change does not restrict private platforms is another optical illusion. The private nature of a platform like Facebook or Twitter does not mean that government officials can use it as a public forum to engage their audiences interactively while blocking access to people whose views they detest. This is what a federal appeals court held against Trump in 2019 at the Knight First Amendment Institute, which includes Trump’s efforts to kick some of his critics off his Twitter feed. Trump and his loyal supporters unsuccessfully claimed in this case that he had an initial adjustment right to censor citizens who want to communicate with him on Twitter because this platform is privately owned. Still, he and his supporters are now claiming that the private owners of Twitter and Facebook have no right to boot him from their platforms because they abused their rules in force. What hypocrisy!
With the first change, government measures to regulate or otherwise influence the use of privately owned social media platforms, traditional media such as newspapers and cable networks and even public utilities or so-called “common carriers” such as the old telephone system – stupid pipes – will have numerous limits set that do not exercise any curatorial or editorial functions, but are obliged to carry all information that someone wants to transmit. The type of government action that the first change allows will largely depend on the type of communications system it wishes to influence. For example, one of the earliest Supreme Court invocations of freedom of expression principles to restrict government action affecting the use of telephone technology was the conclusion in a 1967 wiretapping case that electronic surveillance of telephone users was viewed as “search and seizure” that the fourth amendment guarantee, as conditioning people to expect Big Brother to listen to their calls would unduly affect freedom of expression.
The Supreme Court has also ruled that any doctrine of law that allows courts to award damages to those claiming to have been harmed by lies spread by the media, including on platforms like Facebook, must be fine-tuned to avoid excessive cooling of freedom of speech and preserve what judges refer to as “breathing space” for a society based on the consent of the governed to function effectively. This is especially true if the complaints involve civil servants or “public figures”. While the contours of these adjustments are not specifically set out, they certainly do not warrant the extensive immunity Section 230 currently grants on social media platforms.
Additionally, there are numerous Supreme Court precedents in support of the application of consumer protection laws, such as those enforced by the Bureau of Consumer Financial Protection and the Federal Trade Commission, to deliver speeches that mislead people into unwitting harm – which is what the identity-stealing algorithms many platforms use do in spades. There is also a precedent for applying unfair competition and antitrust laws to journalistic firms that improperly amass economic power or otherwise gain unfair dominance, which in turn the largest social media platforms may have done.
Government officials are tempted to filter out what they believe to be false and dangerous in serial speeches when confronted with serial suppliers of gross, harmful falsehoods. They state that the truth never catches up with the lie. If the lie is allowed to go viral, it is impossible to ever repair the damage. That could be true. However, it does not follow that the government can silence the speech before it takes place. The First Amendment order that Congress should pass “no law to curtail … freedom of expression” has long prevented the government from placing “prior restrictions” on speech. Such restrictions, backed up by the power of contempt, are just too effective to bottle ideas, and a core objective of the Constitution has been to prohibit the government from playing a censorship role as powerful as it is created by the infamous licensing of the press law, the English Parliament was created in 1662 to prevent the printing, selling or importing of “heretical seditious schismatic or offensive books or pamphlets” anywhere in the British Empire.
The result is that well-defined legal doctrines exist to implement the first (and fourth) amendment to provide a framework for regulating the increasingly ubiquitous social media platforms that profoundly shape our daily lives and the character of our society. The world is in love with social media platforms. You seduce a global audience. As much as we love these new technologies, we must not blind ourselves to the tricks and traps and the fine print lest we lose our ability to remain free citizens in the democracy that we are still trying to build.
Laurence H. Tribe is Professor at Carl M. Loeb University and Professor Emeritus of Constitutional Law at Harvard, author of numerous books on the Constitution and the Court of Justice, and an attorney for the Supreme Court. Follow him on Twitter @tribelaw.