Saturday, August 21, 2021
In a climate of extreme partisanship and polarization, platforms such as Facebook and Twitter – with the express authorization of Congress under Section 230 of the Communications Decency Act – exercise unprecedented power to censor the content and viewpoints that individuals express on these platforms, particularly concerning political speech. And social media platforms have done precisely that, censoring views that they subjectively deem objectionable or inappropriate – with no repercussions whatsoever. In so doing, social media platforms thwart the robust exchange of opinions and thus undermine the marketplace of ideas that is so essential to a properly functioning democracy and a diverse society.
If the federal government engaged in such conduct, it would unquestionably violate the First Amendment. Social media platforms, however, are private companies, not government (state) actors, thus rendering the First Amendment inapplicable and enabling social media to engage in content and viewpoint-based discrimination with impunity.
That has to change – now.
For the reasons set forth below, the United States Supreme Court should hold that social media platforms such as Facebook and Twitter are state actors and, as such, prohibited from engaging in conduct that would violate individuals’ free speech rights.
1. Through Section 230 of the Communications Decency Act, Congress gave (and delegated to) social media the power to engage in content-based discrimination.
A private company can be deemed a state actor when there is a close relationship between the private party's actions and the government's objectives, or when the private party performs a traditional government function. In Skinner v. Railway Labor Executives’ Association, for example, Congress empowered private companies to conduct drug tests of their employees. The Labor Association objected, arguing that the drug tests violated the Fourth Amendment's protection against unreasonable searches and seizures. The Supreme Court held that, although the railroad was a private company, the tests, which the government explicitly authorized, rendered the railroad a state actor for this purpose. Additionally, in Marsh v. Alabama, the Court held that when a private company exercises powers that are traditionally reserved to the states, it is engaging in a public function and thus must respect constitutional safeguards.
Based on Skinner, social media can arguably be deemed a state actor. Through Section 230, Congress explicitly authorized social media platforms to do precisely what the First Amendment prohibits: censor information based on content or viewpoint. As one commentator explains:
Section 230 … grants a … “good Samaritan” immunity to online platforms as well. In this second immunity, Section 230 authorizes internet platforms to block content deemed “lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected.” Section 230 explicitly exempts websites from most civil and state criminal liability for any action they take in a “good faith effort” to exclude such “offensive” material.
As Professor Dawn Nunziato states, “Congress encouraged private Internet actors to do what it could not do itself—restrict harmful, offensive, and otherwise undesirable speech, the expression of which would nonetheless be protected by the First Amendment.”
Simply put, Section 230 “effectively immunizes and induces private conduct that would be unconstitutional if governmental actors did it themselves.” And that is the problem. Congress should not be permitted to evade First Amendment protections simply by giving social media platforms – the modern-day marketplace of ideas – the power to do that which it could never do.
2. Social media is the new public forum and the modern-day marketplace of ideas.
Most citizens do not express their political views on Main Street, in public parks, or in the public square. Rather, they express their views online, such as on their Facebook and Twitter pages. Indeed, the views that millions of social media users express often relate directly to political and public policy issues, such as judicial nominees, abortion, climate change, campaign finance reform, and infrastructure. To be sure, a person need spend only a few minutes on Facebook or Twitter – or read Alexandria Ocasio Cortez’s Twitter feed (among others in both parties) – to realize that these platforms are the primary vehicle by which users express a diverse array of political views and engage in often heated debates on public policy issues.
Put simply, the marketplace of ideas – the forum in which diverse ideas on matters of public concern, however unpopular or distasteful, are welcome – is now located on social media platforms.
By censoring information that it subjectively and arbitrarily deems “objectionable,” social media is compromising the marketplace of ideas by doing precisely what the First Amendment prohibits – engaging in content and viewpoint discrimination. If legislators are to remain committed to respecting all points of view, rejecting discrimination and arbitrariness, and recognizing that unpopular ideas are essential to public discourse, they should conclude that social media platforms, particularly due to the power Section 230 grants, are state actors.
3. A robust public discourse – including welcoming offensive and unpopular ideas – is essential to democracy, liberty, and diversity.
Politics and public discourse have become so divisive and polarized that diverse and unpopular viewpoints – regardless of political affiliation – are often met with scorn and ridicule. By censoring diverse views that challenge widely accepted and prevailing views, social media exacerbates this problem.
It encourages groupthink.
It discourages critical analysis of public policy issues.
Don’t be fooled by the claim that social media platforms are simply preventing the dissemination of “misinformation.” That determination is subjective and arbitrary. It is also anathema to the principle that liberty, democracy, and diversity depend on tolerating speech that we hate and views that we abhor. Ultimately, welcoming all viewpoints and eschewing discrimination vindicates every individual’s interest in having a voice in democracy. As Erwin Chemerinsky stated:
Freedom of speech is defended both instrumentally—it helps people make better decisions—and intrinsically—individuals benefit from being able to express their views. The consensus is that the activity of expression is vital and must be protected. Any infringement of freedom of speech, be it by public or private entities, sacrifices these values. In other words, the consensus is not just that the government should not punish expression; rather, it is that speech is valuable and, therefore, any unjustified violation is impermissible. If employers can fire employees and landlords can evict tenants because of their speech, then speech will be chilled and expression lost. Instrumentally, the “marketplace of ideas” is constricted while, intrinsically, individuals are denied the ability to express themselves. Therefore, courts should uphold the social consensus by stopping all impermissible infringements of speech, not just those resulting from state action.
Upholding the social consensus – and the First Amendment’s original purpose – supports a finding that social media platforms, due both to Section 230 and their status as the new public forum, are state actors.
The solution to this problem is simple: social media should retain immunity for the comments posted by its users. However, social media should only be prohibited from censoring speech that the Court has held receives no First Amendment protection. This includes, for example, obscenity and speech that incites violence.
Otherwise, the marketplace of ideas should remain a place where diverse and unpopular ideas are welcomed.
 489 U.S. 602 (1990)
 See id.
 See id.
 See id.
 Jed Rubenfeld, Are Facebook and Google State Actors? (Nov. 4, 2019), available at: Are Facebook and Google State Actors? - Lawfare (lawfareblog.com) (emphasis in original).
 David L. Hudson, Jr., In the Age of Social Media, Expand the Reach of the First Amendment, available at: In the Age of Social Media, Expand the Reach of the First Amendment (americanbar.org) (quoting Erwin Chemerinsky) (emphasis added).