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How Does The First Amendment Apply To Online Speech?

This month, we’re looking at various constitutional issues and tangential actions. Of these, there’s a recent hot-button issue regarding the purpose of “freedom of speech” online. From fake news to political speech on websites, the notion of “what is allowed” and “what should be allowed” is still raised by people.  So, what can a website do to maintain the balance between free speech rights and acceptable community standards? Is there any responsibility to allow negative views? What is the risk, if any, towards censorship?

Freedom of speech online

In the wake of 2016, there’s a new question of online service providers that if they allow people to express themselves then they should either act as a gate keeper or grant carte blanche to all users.  Most notably, there’s been the Facebook “fake news” complaints, as well as the actions of a Reddit executive towards supporters of Donald Trump. In the case of Facebook, there were both complaints that it was discriminatory not showing stories from every end of the political spectrum, and negligent that it was not taking action to curtail “fake news” and their influences.  For Reddit, an executive had made edits to statements by Trump supporters to change comments critical of him to individuals that were managing the Reddit group.

Ironically, laws to prohibit or restrict the ability of online service providers may actually be more likely to be found unconstitutional than the actions of online service providers. This spawns from older cases, such as Miami Herald Publishing Co. v. Tornillo, deeming that the editorial choices of a newspaper cannot be restricted by statute, where the statute would have required a newspaper to allow candidates a forum to respond to criticism.

What are the risks?

Notably, the protections of the First Amendment only exist for publicly-available forums, and generally apply only to government actions. Essentially, this would mean that as a general rule, online entities would not be liable for any action that they take to curate or prohibit posts on their websites.  This may be justified through a terms of service agreement involved in creating an account.  Thus, regarding Facebook, and any complaints as to how it curates recent activities or even the labeling of “fake news,” the terms of service likely allow it to do so.  In the case of Reddit, it may be harder to determine due to the specific actions, but like any other contract, the remedies can be limited.

The real risk could be the unwanted public attention and loss of a user base. In the case of Facebook, which was criticized severely for the “fake news” problem, it adjusted to that popular uproar by adding a way to “flag” the fake news.  Likewise, the claims of bias in the recent activity feed were addressed by removing the human moderation for the most part, and replacing that with an algorithm.

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