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).

Local news outlets need to report on hate, racism that fueled attack on U.S. Capitol

In the days and weeks since the Jan. 6 attack on the U.S. Capitol building and its police officers, it’s becoming clearer just how local this story is, even as the national media outlets have moved to the inauguration and the first days of the Joseph Biden presidency.

The people who participated in the insurrection were from our communities. The members of the branch of government they attacked come from and represent our communities. They were called to act by a president elected by large margins in our communities. 

I couldn’t help but think of the hand-wringing that took place after Donald Trump (surprise!) was elected in 2016. The national media and the pollsters they relied on were distraught that they missed the signs of Trump’s popularity in large parts of the country. National media outlets vowed not to be caught again.

A broadcast journalist gives a report Jan. 8 outside the U.S. Capitol building, two days after insurrectionists breached security and made their way inside. (Photo by Victoria Pickering)

We can’t be caught either.

Some of our readers, or at the very least, some of our community members participated in the rally and then charged the capitol. Some simply went to Washington, convinced that the election was stolen. Their anger and disappointment didn’t abate with Biden’s inauguration. 

It is our responsibility to report on and to explore the distrust in government that we saw, the white supremacy that we saw, the racism that we saw, the hatred that we saw, including the hatred toward us.

It is far too easy to allow our readers to distinguish between the elite national media organisations and the journalism that we do. But, in fact, we aren’t different. The vast majority of national media reporters got into the business for the same reason we did. They aren’t motivated by politics or agenda either. 

As the country moves to heal and reckon with the largest breach on the U.S. capitol since 1814, we need to host the conversation that our communities need to have.

So what would that look like? It’s in-depth interviews with people who feel marginalized by the media. It’s talking to law enforcement officers. It’s talking to the teachers in our communities.  It’s talking to people who have been hurt by racism. It’s putting all of that together in stories that seek to understand and not expose. But we shouldn’t shy away from exposing wrongdoing and hate either.

Look, I get it. This isn’t going to be easy. I spent Inauguration Day with a family member whose political beliefs are different from mine, whose framing of what happened on Jan. 6 is different from mine, whose finger points in a different direction than mine. Because we love each other, because neither of us is interested in fighting about politics, we spent the day in separate corners of the house for the most part. I felt it was important for my Black children to watch the swearing in of the nation’s first Black vice president who also is the first woman to hold that office. But I did that alone with my children.

I know I’m asking you to start a conversation that I didn’t want to have that day, to have it with members of your community who are like family members to you, too. The transfer of power did not disburse the sentiment that led to the Jan. 6 insurrection. 

We have to have these conversations if we are going to move forward as a country, and as community journalists, we have a particular responsibility to start them. Let’s not hand the story over to people who don’t really know our communities. Let’s lead the way.

A version of this story first appeared in Publisher’s Auxiliary, the only national publication serving America’s community newspapers. It is published by the National Newspaper Association. GJR is partnering with Pub Aux to re-print Jackie Spinner’s monthly “Local Matters” column on our website. Spinner is the editor of Gateway Journalism Review. Follow her on Twitter @jackiespinner. 

Skeletons in the closet? Uncovering embarrassing Wiki edits by Pentagon, Congress

A recent movement to track in real-time edits government organizations anonymously make to Wikipedia has also turned up deep archives of changes made dating back more than 10 years. For instance, thanks to Jari Bakken, lead developer of a Norwegian parliamentary watchdog account, a database of 1,843 edits made at Pentagon IP addresses from 2004-2010 is now publically available. Exploring this reveals Pentagon employees contributed uncivil language to the pages for John Kerry, Valerie Plame and Marion Berry. One editor put words in Keith Olbermann’s mouth, inverting his quote from “I’m not a liberal, I’m an American,” to “I’m not an American, I’m a liberal.” Regarding the “First Battle of Fallujah” article, an anonymous editor added “WHAT LIBERAL, PACIFIST, JAG-OFF MEMBER OF THE OBAMA CABINET WROTE THIS POLITICALLY SLANTED PUFF-PIECE?” Homophobic slurs were inserted into pages for “gay pride,” “LGBT symbols,” and bizarrely, Evian water. A global warming skeptic quibbled over the language of the article dedicated to the scientific phenomenon from his office at the Department of Defense headquarters. In general, Pentagon employees’ more notable edits addressed what they perceived as Wikipedia’s liberal bias. The history of Congressional edits (13,269 total from 2003-2014), also now available, provides evidence of more ideological alterations. In 2005, for example, someone on Capitol Hill removed a reference to the War on Terror from the page for “crusades.” In 2007, the entire page for “abortion law” was blanked. Some sling mud: One anonymous editor called Noam Chomsky a “dangerous radical” and “undoubtedly a shifty Communist gulag-master.” Another – or possibly the same – labeled Eugene V. Debs a “whore.” Other changes seem more geared toward electability: Joe Lieberman’s lobby connections disappeared; Nancy Pelosi was noted as “extreme” and hypocritical for accepting corporate cash. Some are just silly, such as changing John Boehner’s age to 88 years old. While it appears that the majority of edits emanating from the Beltway have been made in good faith, with a few vandals making alterations without strategic aim, there have been more deliberate changes originating from Congress than the DOD. Still, these are more likely to indicate pettiness than evil. At the very least though, the records indicate a severe misuse of public time, equipment and ultimately tax dollars, according to Stephen Potts, chairman of the Ethics Resource Center during the Meehan embarrassment. It’s fitting, then, that one Pentagon employee apparently spent many hours contributing to the Wiki for Joseph Heller’s classic novel, “Catch-22,” which skewers the absurdity and waste of the military and bureaucracy at large.