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Does Regulating Social Media Platforms Violate the First Amendment?

Alarms bells have been ringing as White House Press Secretary Jen Psaki admitted that the United States Federal Government is actively coordinating with Facebook to flag COVID-19-related posts which they class as “problematic” or “misinformation”. The concern here is that the US government now has a lever to pull when it comes to regulating narratives that either challenge or oppose their official story.

In 2020, a lawsuit was filed by the Children’s Health Defence (CHD) against Facebook and its fact-checkers for censoring their content. The argument was focused “on how the First Amendment was being challenged here by ‘the authorities openly censoring unwanted critique of its narrative’”. This lawsuit was dismissed by Judge Illston as she said there was not enough evidence to suggest that Facebook and the US Government formed a joint enterprise. The recent revelations of Psaki seem to suggest a different story.

However, although there has been a lot of controversy surrounding the role social media plays in the regulation of information, is the censorship of certain narratives actually a violation of Americans’ First Amendment rights?

COVID-19 Censorship Controversy

It is understandable why the US government wants to work with social media companies to regulate the content on their platforms; almost 70 percent of Americans keep updated with the news through their social media accounts. Should this sphere become polluted with misinformative rhetoric, it can create a dissonance between the real and perceived world, making it even more difficult for the government to execute its duty of regulating and protecting its citizens.

Psaki reinforced the government’s official stance by saying it is more important to take faster action against false stories since information travels so quickly on social media. This allows narratives more than ample opportunity to corrupt people’s perspectives. The impacts of this are already becoming clear as the number of anti-vaxxers has risen since the start of the pandemic.

However, there is room for skepticism. There has been a deluge of criticism against social media companies for their censorship. Even since the beginning of the pandemic, academics have been worried about social media’s involvement in directing the narrative. A report by scientific journal EMBO Reports published in October 2020 suggests that censoring “misinformation” is “not the most prudent solution given the uncertainties about the disease” as a lot of scientists are in disagreement about it.

For example, the theory that COVID-19 was made in a lab was quickly shut down and classed as misinformation in February 2020. The Lancet published a statement saying that they “stand together to strongly condemn conspiracy theories suggesting that COVID-19 does not have a natural origin”. However, later down the line, research led by scientist Birger Soresen found that there is evidence to suggest that COVID-19 could be an engineered virus. This theory actually gained so much credibility that Facebook even reversed its ban on posts that claimed that COVID-19 was lab-made.

This demonstrates how social media has somehow simultaneously become both a breeding ground for false information and an obstacle to scientific integrity.

A Potential Loophole?

Although there is a lot of controversy surrounding the regulation of information, is it accurate to regard these controversies as a breach of the First Amendment rights of US citizens? Lawyer and Professor Bob Jarvis lays out the framework for this dilemma.

On the one hand, misinformation is a form of protected speech under the US Constitution as “all information, no matter how wrong, is protected by the First Amendment”. The Constitution must protect misinformation so that the government has no scope to abuse the power and simply label any opposing narratives as “misinformation”. This would be a direct route to dictatorship, Jarvis claims.

On the other hand, social media companies are not bound by the First Amendment. They are private actors who have the power to decide whether they want to endorse or eliminate the narratives on their platforms. With social media companies (namely Facebook) exempt from the need to adhere to the First Amendment, the US government has seemingly found a loophole in the Constitution.

There is no evidence that the US government is forcing any social media companies to sterilise their platforms against any narratives contradicting their own. However, it is not too far-fetched to believe that they could be applying a certain pressure or incentive encouraging social media companies to work with (or for) them.

Alternatively, and perhaps more disturbingly, social media companies have become institutions as powerful as the government itself. They are bound by no constitution and have no obligations to their users to ensure individual rights are protected.

Social Media Companies as Private Actors

Perhaps what COVID-19 has shown us is that we need to re-evaluate the shifting status of big tech companies - especially social media companies - from private to public actors.

The predicament here is that technically no one is required to use social media. That means that when people sign up for these services, they automatically agree to the terms and conditions of this private company.

However, there is recent literature which looks to challenge this stance. There is an argument to be made that, in light of social media’s influence on completely transforming our social lives, people have become involuntarily reliant on it. There is a subtle pressure to be on social media and it is difficult to stay in the loop without an account.

Yet perhaps a more salient argument can be found in the words of Erwin Chemerinsky, Dean of the University of California, Berkeley School of Law:

“It is time to again ask why infringements of the most basic values - speech, privacy, and equality - should be tolerated just because the violator is a private entity rather than the government”.

Thus, while social media regulation does not technically violate First Amendment rights, the recent crisis has demonstrated that this loophole needs to be addressed. The US government is able to “work with” social media companies to block any opposing narratives from coming to fruition. Subsequently, they are essentially putting an end to the concept of a pluralistic society, which is a hallmark of democracy. Perhaps such regulations can be justified during “unprecedented times” but it is wise to remain wary of the fact that the US government does have the power to control what we perceive as the “truth”.


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