Let The First Amendment Be Your Guide
The principles of the amendment that leads the Bill of Rights are your best approach.
This past Saturday marked 235 years since the United States Constitution was signed by the majority of those in attendance at the Constitutional Convention.
When the document was presented to states for ratification, multiple states included suggestions for a bill of rights. When it became clear that the majority of the states wanted that included, James Madison agreed that, when the new Congress convened, it would draft proposals for amendments to present to the states for ratifications.
Ten of those were ratified and they are collectively known as the Bill of Rights.
Because I am a journalist, the First Amendment matters a great deal to me. The right to free speech, free press and to assemble and petition are crucial to allowing journalists to do their jobs.
But as our society has evolved, so has the question about what people should be allowed to say and write. And though the First Amendment doesn't apply to the private industry, there are questions about how much influence private industry has over what people may say or write.
Social media is the prime example. When one signs up for a social media account, one has to review terms of service to know what is or isn't acceptable. However, these companies may change the terms at any time.
How often does the average person read the terms of service and, thus, understand what is acceptable? And if a person does read them, can they still understand what is acceptable?
There are certain things that social media companies deem unacceptable which have been ruled, by the courts, as not protected by the First Amendment when it comes to government regulation. For example, pornography isn't protected, so most people would not argue that social media companies shouldn't restrict it, either.
But what happens if the courts rule a government attempt to regulate speech violates the First Amendment? Again, it's true the First Amendment doesn't apply to the private industry, but would it not be wise for social media companies to use that rule of thumb when making decisions?
Case in point is the push against "misinformation." Nobody seems to be able to agree upon a definition is. Furthermore, if the government decides to codify "misinformation" into law, that's asking for a court case to be filed and, most likely, for the law to be overturned.
But if we can't allow the government to define the term, does that mean a social media company should be allowed to define it? We may be talking about a private company, but where is it written that a private company knows better how to define a term than the government does?
In other words, while we can argue that the First Amendment doesn't apply to the private industry, we can also argue that just because it doesn't apply, it doesn't mean the private company is automatically trustworthy to decide what is "misinformation." That doesn't mean we must pass a law, but it does mean social media companies need to think carefully about how they write their terms of service.
Furthermore, what happens when a government agency pushes a social media company to pull down something on the "misinformation" argument? Could it be that the government has violated the First Amendment by doing so? And if a social media company believes that to be the case, could they not file a case in the courts?
We already have examples of states attempting to regulate social media companies and their ability to restrict what may be posted. Yet while companies have taken states to court over these laws, I am not yet aware of a company taking the government to court over a push to have "misinformation" removed. (I could be wrong, though, and missed such a case.)
Let's not forget that newspapers, television stations and radio stations are private companies, too. Yet newspapers encourage people to write letters to the editor. TV and radio stations are free to offer such an opportunity if they wish. Might it be, then, that social media companies should, at the very least, use the First Amendment as their guide, even if they aren't specifically constrained by it?
While social media companies might argue they never intended to become the vehicle through which public discourse happens, that is essentially what they have become. And if such companies decide this isn't what they wanted, it's going to be tough to undo what has happened.
I struggle with the issue about what should be done when it comes to our public discourse. But perhaps the best suggestion for a social media company is to declare that it will let First Amendment law be the guide to its terms of service. One does not have to codify that into the Constitution to ensure it happens -- a company may do it of its own free will.
We don't just struggle with what to do about the role of social media companies. There are the questions about what books a library should offer for checkout, whether that library is public or a school. Some might prefer a particular theory that's discussed in a college, not be discussed at all. There are those who push to have people who hold particular views to have their bank accounts closed, or to prevent websites from providing information about how to obtain an abortion.
But the question we must always ask is this: How does the First Amendment apply, and if it doesn't, can you demonstrate why?
Regardless of what one believes, let us not forget that having open, honest discussion about these things is made possible by the First Amendment. It's why, in the end, I believe we should stick by its principles as much as possible when we make decisions.