Social Media And The First Amendment: Concerns For 2021

Feb 27th, 2021 | By | Category: Featured Issues, Politics & Current Events

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After the insurrection of 6 January 2021 fostered by the incendiary words of President Trump, his son and the president’s attorney Rudy Giuliani, various social media giants (e.g., Twitter, Facebook, Snapchat and YouTube) responded by permanently banning or suspending the president for violation of their respective “glorification of violence” policies. These actions have raised questions about free speech, the First Amendment and the power of these social media giants.


As Emily Bazelon has observed, “Social media sites effectively function as the public square where people debate the issues of the day.  But the platforms are actually more like privately owned malls:  They make and enforce rules to keep their spaces tolerable, and unlike the government, they’re not obligated to provide all the freedom of speech offered by the First Amendment.  Like the bouncers at a bar, they are free to boot anyone or anything they consider disruptive.”  These realities about the social media phenomenon raise profound questions as to how they function in our democracy.  Bazelon writes:  “Americans have a deep and abiding suspicion of letting the state regulate speech.  At the moment, tech companies are filling the vacuum created by that fear.  But do we really want to trust a handful of chief executives with policing spaces that have become essential parts of democratic discourse?  We are uncomfortable with government doing it; we are uncomfortable with Silicon Valley doing it.  But we are also uncomfortable with nobody doing it at all.”


Bazelon also offers a helpful contrast between America and Europe:  “Among democracies, the United States stands out for its faith that free speech is the right from which all other freedoms flow.  European countries are more apt to fight destabilizing lies by balancing free speech with other rights.  It’s an approach informed by the history of fascism and the memory of how propaganda, lies and the scapegoating of minorities can sweep authoritarian leaders to power . . . [For example] A number of countries in Europe treat Nazism as a unique evil, making it a crime to deny the Holocaust.”  So, “the very features that make social media so potent work both to the benefit and the detriment of democracy . . . For decades tech companies mostly responded to . . . criticism with proud free-speech absolutism.  But external pressures, and the absence of any other force to contain users, gradually dragged them into the expensive and burdensome role of policing their domains.”  For these reasons, social media magnates such a Zuckerberg of Facebook and Dorsey of Twitter have evidenced an openness to government regulation that would hold such platforms to external standards.  I believe we will such regulation sometime in the near future.

John Inazu is a professor of law and religion at the Washington University Law School and the author of Confident Pluralism: Surviving and Thriving through Deep Difference.  Inazu has also worked closely with Manhattan pastor Tim Keller in helping Christians understand the stress points of living in a Postmodern, Post-Christian culture.  Recently, Inazu joined global media manager Morgan Lee and editorial director Ted Olsen of Christianity Today to discuss the complexity of defining “free speech,” “what people misunderstand about the First Amendment, and the blind spots that Christians can have when advocating for free speech.”


What follows is a helpful summary of Inazu’s salient comments:


  • What does the First Amendment actually say?  The first few words are “Congress shall make no law.” It means that the First Amendment applies only to the federal government, not to state and local governments. But it applies only to government, not to private actors.  This is what’s called the “state action doctrine” and it has always been the case with some rare exceptions. “The First Amendment is not going to restrict private entities from their own restrictions on free speech and expression. The First Amendment itself is a restriction on what people can do, people being government entities, and they may not restrict speech, but it does not say anything about private actors. That’s an important distinction these days.”
  • Recently, Senator Josh Hawley claimed that the publisher’s (i.e., Simon and Schuster) decision to cancel his book contract was “a direct assault on the First Amendment.” Was it?  “Hawley’s misuse of the First Amendment is deliberate. It follows efforts he’s made in the past to blur the lines toward private companies, especially the powerful social media corporations.  As a descriptive matter, this has nothing to do with the First Amendment. More importantly, he knows it has nothing to do with the First Amendment. He clerked for Michael McConnell, one of the leading free speech experts in the country, so he knows the First Amendment. To go on social media and tell his constituents that a private book publisher canceling his book contract is a violation of the First Amendment is absolutely wrong and he knows it’s wrong. That to me is disturbing both as a subject matter expert, but also as a fellow Christian.”
  • What do we mean when we say this is speech that is not protected by the First Amendment?  “First of all, lots of speech is functionally not protected by the First Amendment. Even though the text says ‘Congress shall make no law,’ Congress and other government entities make lots of laws that directly restrict speech.  You cannot form a criminal conspiracy through words. You cannot perjure yourself on the witness stand. You cannot say words that engage in insider trading. There are lots of words spoken that are completely restricted by law. Nobody bats an eye at that. Those are not the hard cases, but they do illustrate that there are laws that restrict speech.”  For example, the “incitement standard traces back to a 1969 decision, Brandenburg v. Ohio, where the Supreme Court said the First Amendment will not extend to imminent incitement to law-breaking. Two things are important about that standard: it’s not just violence, its lawbreaking. If I say, ‘Let’s go trespass now,’ even if no one gets hurt, that’s not protected free speech because of the law-breaking standard.”
  • Private [Christian] universities are not subject to the First Amendment. “They’ve had to figure out what is our own internal speech code going to look like.  Entities have been struggling with this question for a long time . . . What you choose to restrict is your choice and the same with what you choose to permit. Whether you make that explicit or not, it is going to reflect your values. It’s going to reflect what you actually think is harmful, which you actually think is not harmful.”
  • How important is it for Christian organizations to defend controversial speech?  “Principles like the First Amendment only work if they’re for everybody. If you only argue for civil liberties and free speech when it’s your own interests, it looks like special pleading and it doesn’t support the Constitutional system that we have. The other point is that civil liberties and constitutional rights are always going to be claimed by those who aren’t in power . . . It’s the people who lack that political and legislative power who need these protections. When Christians find themselves in non-majority positions, they should be advocating for civil liberties. But when they find themselves in majority positions, they should also be advocating for constraints on their own thinking and robust protections for others.”  In the 1990s, Congress enacted legislation called the Equal Access Act. It said if you’re a public school and you open up your classroom space, you’ve got to open it up to all groups. You can’t just say the groups we like. Two groups around the country that benefit from it: the Christian groups and the gay rights groups. In progressive school districts that didn’t want the Christians in, the Christian groups relied on that law.  In conservative districts that didn’t want the gay rights groups in, the gay rights groups relied on that law.”
  • What type of regulation does the government have with regards to social media right now?  “The personal attacks, racial and sexual slurs, or demeaning comments or threats can effectively derail speech. Social media companies try to regulate and minimize some of those things . . . would the government do any better of a job? You would at least have more transparency and possibly accountability. You could have a governmental oversight board that is politically accountable that has to explain its decision-making and its processes.  I applaud the efforts of social media companies to move toward independent oversight boards. I just haven’t seen how they function yet. What concerns me the most is how much power has been consolidated into these few companies. They are effectively controlling the marketplace of ideas today. The other concern is all of this is just reflecting who we already are. We’re the ones who are putting this out and re-tweeting it, and paying attention to it, and letting it shape our hearts and minds and souls.  This includes Christians and non-Christians alike, and we’re becoming who we already see reflected on social media. That’s pretty unsettling.”
  • What is Section 230? Why do some folks want it repealed?  “Section 230 refers to a provision within the Communications Decency Act. And what it does is shield certain companies from potential liability to third-party postings of content. If you’re an interactive computer service, you’re basically a platform and people post their own videos and words on your platform.  Then you cannot be held liable under Section 230 for the contents of those posts or those videos. If you happen to be not just the content service, but become what’s called an information content provider under the statute, then you could be liable if you’re actually producing some of the stuff there.  The reason that people are pushing against that law is the liability shield it provides. The computer services mean that they can grow the revenue streams because they don’t have to worry about that liability cost. Individuals will still be liable for posting something defamatory. Their potential for liability is much smaller than these big companies.”  There is a growing consensus that Congress will eventually amend Section 230.  How and what the revision will look like is uncertain.

In conclusion, permit me a concluding comment about Christians and our “speech,” both verbal and what is written on social media.  It is not about the First Amendment.  The Apostle James has much to say about our speech (see James 3:1-12).  But perhaps most powerfully he counsels, “let everyone be quick to hear, slow to speak and slow to anger, for the anger of man does not achieve the righteousness of God” (1:19-20).  The Apostle Paul counsels, “speak the truth in love” (Ephesians 4:15) and  “Let no unwholesome word proceed from your mouth, but only such a word as is good for edification according to the need of the moment, that it may give grace to those who hear” (Ephesians 4:29).   These words from God through His Apostles must cause Christians to stop and consider their role in the social media phenomenon.  I have read impulsive, angry, bitter words from Christians on social media; personal attacks; racial and sexual slurs; or demeaning comments or threats.  These words do not reflect legitimate disagreements on important issues; these words defy the biblical counsel of James and Paul.  Furthermore, it is ethically wrong for Christians to participate in, pass on or cultivate lies, misrepresentation of truth or personal attacks via Facebook, Twitter, Instagram or any other social media.  It is time for Christians to call one another to account—“quick to hear, slow to speak, slow to anger.”

See Emily Bazelon, “Unspeakable” in the New York Times Magazine (31 January 2021), pp. 34-37; Morgan Lee, “Should Christians Worry Free Speech Is Eroding?” in (21 January 2021).

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