The paradox of Citizens United, the First Amendment and efforts to regulate social media

Facebook’s Oversight Board decided on May 5  retain the suspension of former President Donald Trump from its social media platforms, which includes Instagram. Facebook, along with Twitter and other social media outlets suspended Trump’s accounts after the Jan. 6  riot in Washington, DC,  based on their own assessments of the role his tweets played in inciting the lawlessness.

(Photo by Ed Uthman via Flickr)

Trump’s suspension from popular social media platforms have heightened calls by his supporters to regulate what they call “big tech” companies.  Perhaps, most vocal on this front has been U.S. Sen. Josh Hawley (R-Missouri), who through several statements, has accused Facebook and Twitter of political censorship.  At the state level, the Republican-controlled Florida legislature has moved a bill to Gov. Ron DeSantis’s desk that would make it illegal for social media companies to suspend Florida politicians from their platforms and face daily fines of $250,000 while they are blocked.  More specifically, the Florida law would require social media outlets to publish detailed standards for when politicians might be censored.  

While the recent bills introduced in the U.S. Senate by Republicans like Hawley, and state efforts by GOP lawmakers in Florida are notably in stark contrast to the deregulatory philosophy that has defined Republican-led media policy since the 1980s; they also raise significant First Amendment issues about corporate speech rights in the political arena.

Most significantly, government regulation that would force private entities to publish expression, especially political speech that it disfavors, completely misrepresents how the First Amendment works.  In fact, the First Amendment expressly limits only government power to regulate expression, as it states: “Congress shall make no law . . . abridging the freedom of speech, or of the press.”  Nowhere does it say that the government can compel individuals, corporations or private media to transmit certain messages or speakers – particularly in the realm of politics.

Perhaps, the best illustration of the inherent conflicts between established jurisprudence on First Amendment rights and recent endeavors to force social media outlets to carry expression from politicians can be seen in the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which articulated corporate speech rights in the political arena.  The case originated when Citizens United, a conservative group challenged an FEC prohibition on its promotion and airing of a film it produced that was critical of Hillary Clinton in the days prior to the 2008 Democratic presidential election primary.  Not only did the decision change campaign election law but it also further articulated corporate speech rights.

The Supreme Court said that the First Amendment does not allow Congress to make categorical distinctions based on corporate identity and thus, the government cannot restrain political speech on the basis of a speaker’s identity as a corporation.  Consequently, forcing social media companies to carry political speech with which they do not want to associate would be as problematic as compelling humans to do the same.

Chief Justice John Roberts illustrated this point further in a concurring opinion signed by Justice Samuel Alito by analogizing how the First Amendment protects news media (as corporate speakers) reporting on political candidates in a partial way through editorials, opinion and commentary.  Justice Antonin Scalia made a similar analogy about newspapers in a separate concurring opinion.  

Therefore, if Hawley’s argument is that social media platforms are being politically biased by suspending the accounts of politicians who violated their terms of service — those companies have a First Amendment right to do so; just like news media outlets, such as Fox News, OAN, Newsmax, MSNBC and CNN decide their own programming.  No politician, nor person has a right to demand their own program on any of these networks, or an account on a social media platform.

The bill that just passed in the Florida legislature is even more paradoxical in what it proposes, as it demands that social media companies describe the standards by which someone’s account might be suspended.  Social media outlets already do this in their terms of service statements, even though they are under no legal obligation to do so.  In fact, Section 230 of the federal Communications Decency Act of 1996 gives interactive computer service operators, such as social media outlets broad immunity from user content posted on their networks.  

Incidentally, former President Trump wanted to repeal Section 230 of the decency act to make it possible for him to sue social media companies for messages posted by their users.  However, if Section 230 were repealed, social media companies would be further engaged in censoring even more inflammatory content and deleting problematic accounts like Trump’s for fear of being held legally accountable themselves for inciteful, libelous and other tortious messages.  And that is the real paradox.

Dr. Jeffrey Layne Blevins is Professor & Head of Journalism at the University of Cincinnati and freelance writer of commentary and analysis of media policy issues (@JeffBlevinsPhD).

If you think kneeling during the national anthem is offensive to the military, you should read the Supreme Court’s decision in Snyder v. Phelps

The return of professional sports to our television screens late this summer has come with renewed attention to the Black Lives Matter social justice movement. 

“Black Lives Matter” is painted on the court for every NBA game and the players are allowed to sport social justice slogans on the back of their jerseys.

In Cincinnati, where I live, star slugger Joey Votto donned a Black Lives Matter t-shirt during batting practice and joined some of his teammates in kneeling during the National Anthem. Meanwhile, in my hometown of St. Louis, pitcher Jack Flaherty drew the ire of several Cardinals fans after he became outspoken about social justice issues.  In particular, it was the suggestion of kneeling during the anthem that sparked most of the outrage on social media, because (among other things) it was deemed offensive to the U.S. military, and reignited the controversy from 2017 over Colin Kaepernick and other NFL players who knelt.

As a U.S. Army veteran myself, I found the suggestion (especially by those who have not served) that kneeling during the anthem is somehow disrespectful to veterans, or anti-military, as intellectually misplaced. Of course, I do not speak for all members and veterans of the U.S. armed forces, and there is no consensus among military people about the issue.  Also, as a journalist and now, journalism professor, I tend to be pretty thick skinned even when my professional group is the target of insulting expression.  After all, free expression – one of the foundational freedoms the U.S. was built upon – does not require us to be respectful when airing our grievances.

The St. Louis Cardinals play at home during a game last season. (Photo by Jeffrey Blevins)

However, assuming arguendo that kneeling during the National Anthem is disrespectful to the military, what would contemporary jurisprudence tell us about balancing offensive expression with honoring those who have served in the armed forces?  That brings us to the U.S. Supreme Court’s 2011 decision in Snyder v. Phelps (562 U.S. 443).

The Westboro Baptist Church of Topeka, Kansas had been picketing outside the funerals of military personnel killed in the Iraq and Afghan wars. The father of one of the fallen soldiers, Albert Snyder, had filed a civil suit against Westboro Baptist for intentional infliction of emotional distress.  While Snyder won a trial court decision and was awarded $10.9 million in damages, a federal appeals court and the U.S. Supreme Court overturned the decision. In an 8-1 ruling, the Supreme Court held that Snyder was not entitled to a civil award because the First amendment protects from tort liability those who stage peaceful protests on matters of public concern, even near funerals of military personnel. 

While peaceful in their physical behavior, the protesters brandished signs with patently offensive messages directed toward the fallen troops as their loved ones grieved, such as “Thank God for dead soldiers,” “You’re going to hell,” and “God Hates You,” as well as other slurs aimed at gays. Apparently, It was the Westboro Baptist’s belief that God had damned the U.S. for its acceptance of “homosexuality.”

Although, its argument was ultimately unsuccessful, the American Legion (an organization made of up of armed forces veterans, which this author is a member of) filed an amicus curiae brief that maintained funerals are private and sensitive matters that have historically been as sacrosanct as homes and hospitals. Specifically, the Legion argued that burial rites have been respected in almost all civilizations, and long before the First Amendment.

However, the Court was ultimately not persuaded by these appeals to privacy, sensitivity, or even a call for common decency and respect for U.S. soldiers killed in combat. When balancing the right to present clearly offensive expression against the sanctity of funerals – even for military personnel – the interests of free expression prevailed.

Now, let’s apply the Court’s reasoning in Snyder v. Phelps to the matter of athletes kneeling during the National Anthem. Arguably, kneeling during the anthem is not even in the same league of offensive expression as the messages the Westboro Baptist Church displayed outside of funerals for soldiers lost during war. At the same time, not standing for the anthem is still offensive to some.

Personally, as a veteran and an American Legion member, I would never kneel during the anthem or the presentation of the American flag. Even though I strongly support the cause of social justice for which these players are drawing attention, this form of expression would not be right for me, personally. I can only imagine the emotional effect that the anthem and the flag has on veterans who have seen some of the fellow soldiers come back home in coffins draped with the stars and stripes. (For the sake of accuracy, I was fortunate enough not to have seen combat during my time in the Army. While I did a tour in Korea from 1989-1990, my experience was more like an episode of the television sitcom, M*A*S*H; it was mostly comedy with only a little tragedy sprinkled in). My point here is only that I understand why some veterans might find kneeling during the anthem offensive. 

Nonetheless, ideas about what is offensive are far too personal for even the Supreme Court to decide on national standards for what is acceptable when constitutionally protected expression and peaceful protests are involved. The First Amendment does not pick sides in our debates – it simply, but importantly, affords us the liberty to have them.

While seeing others not standing for the anthem might be offensive to some individuals, no one is physically harmed by watching (or knowing that) some other person knelt. Rather than obsessing about our dismay over the form of expression others may choose, perhaps we should focus our attention on the substance of the message itself. If the First Amendment is inclusive enough to even protect the right to display hateful expression toward soldiers killed in combat, then we can surely tolerate a quiet form of protest against institutional racism.

Jeffrey Layne Blevins is a professor and head of the Journalism Department at the University of Cincinnati and a freelance opinion writer (@JeffBlevinsPhD).