Free Speech and the Regulation of Social Media Content
Free speech on social media has become a significant and contentious issue in the contemporary digital landscape, particularly in light of political events such as the 2016 U.S. presidential election. In the United States, the First Amendment protects individuals from government censorship but does not extend to private companies, allowing social media platforms to enforce their own content moderation policies. This has raised concerns about the balance between protecting free speech and preventing harmful content, especially as social media serves as a tool for both activism and disinformation. Globally, various countries have implemented differing degrees of regulation, with some, like China and North Korea, exercising stringent censorship and banning Western platforms altogether.
The intersection of free speech and social media regulation is further complicated by instances of disinformation campaigns, which can manipulate public opinion and impact democratic processes. Additionally, legal cases involving students have highlighted how off-campus social media expression is treated inconsistently within educational settings. As governments and platforms grapple with the repercussions of harmful content and the protection of free expression, the debate continues on how best to navigate these complex challenges. This ongoing dialogue underscores the evolving nature of free speech in the digital age, where both rights and restrictions coexist.
Free Speech and the Regulation of Social Media Content
Overview
Free speech on social media has been a growing issue in the twenty-first century as use of the Internet has increased. The topic was highly contentious during and after the 2016 US presidential election, notably in claims by conservatives that their voices were being silenced. Free speech in the United States is protected from government censorship by the First Amendment of the US Constitution but is not protected from censorship by private companies. Therefore, individuals who violate the terms of service of social media platforms may be limited or banned outright. Around the world, social media has been used by activists to organize demonstrations and leaders and bigots to foment violence. Disinformation campaigns have been used to influence elections and public policy. Some countries have banned social media, while others have placed limits on users’ speech online. As technology improves, some governments have continued to impose limits on citizens’ use of social media.
US Law
Free speech within limits is protected in the United States and included in the Bill of Rights. The Founding Fathers had many sources of information and traditions to refer to when they were writing the US Constitution. They initially did not enumerate specific rights but eventually saw the value in doing so. They began to amend the document based on British law. The Magna Carta, signed by England’s King John in 1215, established protection of subjects from abuses of power, such as requiring that proceedings adhere to laws. In 1628, Parliament passed the Petition of Right that required Parliament’s agreement to taxes and outlawing unlawful imprisonment. In 1689 Parliament adopted its Bill of Rights, which contains provisions later adopted by the United States.
English law, including the Magna Carta, was the rule of the land in the British American colonies. In the 1760s, as the breakdown between England and the colonists increased, many Americans appealed for just treatment based on the Magna Carta and other legal documents that indicated that their treatment should be equal to those subjects living in England. In 1776, having seen their demands for equality brushed aside, the Americans declared independence and set about writing state constitutions and bills of rights. The Virginia Declaration of Rights, largely created by George Mason, was the basis of numerous other states’ documents. Mason attended the Constitutional Convention in Philadelphia in 1787 and stated his belief that the Constitution should have included a Bill of Rights. Others disagreed because they believed the federal government would be extremely limited in its power. In Article I, the Founders listed the powers of the federal government, which included collecting taxes, paying debts, minting currency, declaring war, raising and supporting the military, and making laws needed to carry out these enumerated powers. However, when some opponents of ratification called for a bill of rights, the Founders agreed that amendments could be added to the Constitution after ratification.
The Founding Fathers adopted the Bill of Rights on December 15, 1791. The First Amendment states, in part, “Congress shall make no law. . . abridging the freedom of speech, or of the press.” Since the amendment was adopted, the US Supreme Court has ruled repeatedly that it refers to all levels of government, not just Congress, and all government officials in the executive, judicial, and legislative branches. It does not apply to private individuals and organizations, including private schools and private employers. The Court has also interpreted speech and press very broadly as technology has advanced, including broadcasting, postings on the Internet, and other forms of expression. When it was written and debated, Congress recognized that such protection did not shield individuals or organizations from the consequences of their speech. For example, one can be sued for knowingly making false statements that damage an individual’s or organization’s reputation. The courts have not always been open to some types of expression. For example, courts did not protect blasphemy during the nineteenth century, and the Supreme Court ruled that some types of speech such as that against the military draft during World War I was not protected (Stone & Volokh, n.d.). This narrow reading of the First Amendment began to change in the 1920s, and since then the Supreme Court has supported some restrictions. For example, some types of speech, notably obscenity and child pornography, have little or no protection. Other low-value forms of speech include defamation, threats to commit a crime, fighting words, and commercial advertising. Fighting words are those face-to-face examples of incendiary speech that are likely to lead to violence, not merely statements that others find offensive, such as those uttered during demonstrations.
British Law
While American legislators drew on English law, England had no legal protection for speech that was similar to the US First Amendment. Late in the twentieth century, some courts interpreted common law as offering some protection of speech. Parliament’s adoption of the Human Rights Act of 1998 incorporated into British law the European Convention on Human Rights, which had been adopted by many European countries after World War II. Among these enumerated rights is the right to freedom of expression.
In 2022 legislators in the Parliament of the United Kingdom introduced the Online Safety Bill. Lawmakers said that it would protect freedom of speech while also protecting users from harmful or illegal content on social media. This bill outlines the responsibilities of Internet entities including social media, search engines, and apps to monitor and address harmful and illegal content and protect democratic political debate and journalism. They would only be required to address content that the government classified as harmful but not illegal, such as self-harm, in a bid to prevent companies from removing legal posts. While many countries around the world ban pornography, this bill mandated that websites put processes in place to ensure that no minors would access it. It would make cyberflashing, or sending unsolicited nude images, a crime and require larger companies to give users tools to limit whom they interact with and what they see to fight against anonymous trolling, which is often sexual or racist in nature.
Global Issue
Multiple countries around the world have strict limits on speech and on social media (Bischoff, 2022). China and North Korea heavily censor media, ban western social media, and control any social media its citizens can access. Facebook, Twitter, and YouTube are blocked in these countries as well as in Iran. Many countries, including Cuba, Greece, Hungary, and Kosovo, limited political media, while some, such as Belarus, Egypt, Iran, Malaysia, North Korea, South Korea, Russia, Saudi Arabia, United Arab Emirates, and Venezuela, blocked it entirely.
China has implemented an official, far-reaching censorship and surveillance policy. In 2000 the Ministry of Public Security initiated what is called the Great Firewall, a system that blocked some sites and was used to watch and censor individuals and content. This system gradually expanded until Chinese citizens had virtually no contact beyond their country. Facebook, Twitter, Google, and other major platforms either withdrew because of constraints or were blocked in the country, but Chinese platforms that conform to government restrictions are widely used. Among these are WeChat, Weibo, and Douyin. Social media platforms employ thousands of people to review content and remove anything critical of the government. They use artificial intelligence (AI) to scan and censor images. The Cyberspace Administration of China (CAC) oversees social media use in the country. In 2017 China enacted the Provisions on the Management of Internet Post Comments Services regulation, which covers posts on forums, public message boards, and other platforms and covers anything posted, including videos, audio, and GIFs. Government offices had the power to censor comments on most sites such as Weibo. The agency was updating its policies in 2022 to expand preapproval requirements to include posts in comment sections.
Further Insights
Free speech cases at times involve students. While the US courts have upheld free speech of students even on school property in many cases, speech on social media has been viewed somewhat differently and sometimes inconsistently. The 1969 US Supreme Court ruling in Tinker v. Des Moines Independent Community School Districtfound that student conduct in school that was disruptive or invaded the rights of others was not protected speech. Other cases have upheld this finding. In 2011, a high school student in Mississippi created and posted a rap recording about two teachers. He did so away from school and on his public Facebook and YouTube accounts. The rap language referred to a firearm and threatened to put it in a teacher’s mouth. The school district suspended him and transferred him to an alternative school. The student, Taylor Bell, sued on the grounds that the disciplinary actions violated his right to free speech but lost his case, Bell v. Itawamba School District. The case went to the US Court of Appeals for the Fifth Circuit, which upheld the judgment based on Tinker. The court found the threatening language Bell used could be disruptive.
A Pennsylvania teen was also involved in a free speech issue related to social media. The student was upset when she did not make the Mahanoy Area High School varsity cheerleading squad and posted images to Snapchat, an app that allows users to share temporary images with friends. The teen, identified as B. L., used vulgar language in the post, which was brought to the attention of school officials. She was suspended from the junior varsity cheerleading squad. She and her parents sued, arguing that the punishment for her posts was a violation of the First Amendment. She won her case, Mahanoy Area School District v. B. L., because her post was not disruptive in school, but the case was appealed. In 2021 the US Supreme Court found that off-campus speech that is not disruptive is protected, and the district had violated her First Amendment rights.
Often, social media is reluctant to limit postings by politicians and other officials. This can have far-reaching consequences. For example, in 2020 Facebook India’s public policy director was accused of refusing to apply the company’s hate speech rules to some government figures’ posts. The posts were reportedly violent and anti-Muslim. In 2018 the United Nations reported that Facebook was used to disseminate hate speech in Myanmar, where Rohingya Muslims were attacked, executed, and raped by military forces. Human rights activists reported that Facebook did not remove content such as ads containing negative comments about Rohingya people.
Viewpoints
An issue that has frequently emerged online is disinformation, or information that is wrong and meant to mislead, as opposed to misinformation. Misinformation, or any information a person spreads without knowing it is wrong, spreads readily on social media because it is easy to post and share. Disinformation often originates with governments or countries’ intelligence agencies and is disseminated with the purpose of manipulating and misleading the populace. Propaganda, a form of disinformation, is commonly spread through disinformation campaigns that in modern times heavily employ social media. Dictatorships spread false information about other countries and their intentions and glowing disinformation about their own situations. Russia created false social media accounts to boost divisive topics in the United States in 2016 and 2020.
Questions about social media use, regulation, and free speech were prevalent during the 2016 and 2020 US presidential election cycles. Multiple accounts shared false news stories, many of which were reshared and believed by readers. Allcott and Gentzkow (2017) found that fake stories were shared more frequently than mainstream news stories. In their study, they discovered that 115 false stories favoring Donald Trump, the Republican candidate, were shared on Facebook 30 million times; forty-one positive but false stories about the Democratic candidate, Hillary Clinton, were shared 7.6 million times. As a result of misinformation, Facebook and Twitter increased efforts to combat false information. They increased tools to report posts and accounts and employed fact checkers.
During the 2020 US election cycle, many conservative politicians claimed their views were being censored on social media, notably after Facebook and Twitter labeled some posts misleading or false. Republican members of Congress questioned tech chief executive officers in hearings. However, analysis of social media found the opposite to be true. Right-wing social media content about Black Lives Matter, for example, was shared more than ten times as often as the top liberal posts (Scott, 2020).
Many conservatives called for social media to be regulated as a news source, while others demanded that no content be banned or labeled as false. Some leaders and social media users misunderstood or misstated the parameters of freedom of speech. While Trump was in office, Twitter did not apply its standards to some of his posts that contained false information or attacked political rivals. The platform stated that the posts to his personal account amounted to official government statements and were in the public interest. The company’s stance changed following the January 6, 2021, attack by Trump supporters on the US Capitol. Twitter referred to Trump’s activity on the platform as a factor in the attack and banned him on January 8, 2021. Later, Trump sued Twitter to have his account reinstated. He claimed Twitter had violated his First Amendment rights to free speech. In dismissing the case, the judge pointed out that Twitter is a private company, and the First Amendment does not apply in such cases.
In May 2023 Montana became the first US state to ban the use of the social media app TikTok after passing legislation that prohibited app stores from offering the app beginning in 2024. (Users who had already downloaded TikTok were able to continue using it at the time of the bill's implementation.) Lawmakers who supported the bill cited a desire to prevent the Chinese government from using it as a potential surveillance tool. (In March 2023 the US Justice Department began investigating TikTok's parent company, the Chinese company ByteDance, for allegedly spying on US users of the app.) Previously, in December 2022, the Biden administration banned federal employees from using TikTok on work devices in most cases due to security concerns. Following Montana's ban, TikTok called it an infringement on the First Amendment.
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