By: Rolf Lundberg, Staff Writer
A. The Alternative Channel
Through the First Amendment, Americans are arguably afforded greater protection of their speech than in any other western democracy. However, those protections are not boundless. Under certain circumstances the government is compelled to, and may, prohibit free speech in some public forums. In order for such a restriction to survive legal challenges, however, the restriction must pass a three-prong test: 1) The restriction must be content neutral; 2) The restriction must be narrowly tailored to fulfill a significant government interest; and 3) The restriction must allow alternative channels for the speech to be communicated. An alternative channel is sufficient if it is accessible and the speaker is still able to communicate to his or her intended audience.
The rigorous application of this test is especially important now, as many State governments and municipalities have acted to regulate traditional public forums in response to the COVID health crisis. As a recourse, many Americans have been turning to social media to express their views. This begs the question, though, does social media serve as a sufficient alternative channel for speech, such that it satisfies the third prong of the test?
B. First Amendment vs. Social Media
Recently, in the 2017 case of Packingham v. North Carolina, the Supreme Court nullified a North Carolina statute which made it a felony for registered sex offenders to access certain websites, including social media websites. Justice Kennedy, delivering the Court’s majority opinion, held that one may not be legally foreclosed from accessing social media sites, as “websites can provide perhaps the most powerful mechanisms available for a private citizen to make his or her voice heard.” According to the Court, such a restriction is not narrowly tailored to serve a significant government interest.
Packingham confirms that the Supreme Court places a great deal of stock in the individual’s ability to participate in the marketplace of ideas via social media. What the Court has not addressed, however, is social media sites’ seemingly unchecked ability to remove the content of those who use their platforms. This, some argue, effectively obstructs social media users’ ability to participate in the marketplace of ideas, as online discourse is now one of the primary means of making one’s voice heard.
In determining whether a post should be censored or removed, certain social media sites have imposed community standards which allow them to exercise broad, vague discretion. Twitter, for example, will remove content deemed “misleading information,” which they define as “statements or assertions that have been confirmed false or misleading by subject-matter experts, such as public health authorities.” Twitter has recently exercised these standards to remove tweets which include false Covid-19 information, including tweets from President Trump. Despite Twitter’s motive of preventing the spread of false information, the concerning obscurity of this standard could, conceivably, allow Twitter to censor posts on the basis of content-bias.
Unlike the Twitter standard, content-based censorship is specifically forbidden in traditional public forums which are subject to the First Amendment. As such, the Supreme Court has set a very protective standard of (false) content-based speech. In United States v. Alvarez, another Justice Kennedy opinion, the Supreme Court struck down the Stolen Valor Act, which outlawed lying about military service. In doing so, the Court held that there is no general First Amendment exception for false statements, and that a content-based restriction on speech will not pass a constitutional muster if it “targets falsity and nothing more.”
Though some speech such as false information may arguably have constitutionally “low value,” the Alvarez opinion makes clear that this type of speech still does have First Amendment protections. As stated in New York Time v. Sullivan, “erroneous statement is inevitable in free debate, and it must be protected if the freedoms of expression are to have the ‘breathing space’ they need to survive.” When those who wish to speak are deprived of their forum and their audience, despite the potentially erroneous or false information they wish to impart, they must still have an alternative channel to deliver their message.
In recent months, Governors of various States have limited public gatherings to combat the pandemic, inarguably depriving people of forums normally-protected by the First Amendment. These deprived people must have available to them an alternative channel by which they can still reach their intended audience. However, given the broad and vague standards on “misleading” speech that social media entities have recently imposed upon their users’ content, and their ability to censor the content under such standards, it does not seem likely that social media constitutes a sufficient alternative forum for free speech.
Some assert that the First Amendment should be expanded to protect social media users. However, those platforms are still private entities, and such a development may be considered a constitutional transgression in itself. Although the current Administration has been taking action via executive order to combat the censoring of speech on social media, it remains to be seen if this order will survive constitutional scrutiny or if social media sites will alter their standards. Until that time, be careful about what you Tweet.