By: Maian Adams
In a 1939 opinion, Justice Owen J. Roberts wrote “[w]herever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.” The streets and parks that were once a gathering place have now evolved to online platforms where a plenitude of individuals share their thoughts. But these public platforms are private enterprises and thus able to edit their members’ speech. These social media platforms are rapidly becoming universal king makers, for they control the media and how the news is or is not presented to the public.
Prager University, a conservative non-profit, sued YouTube for censoring their speech. Because it deemed the speech unsuitable, YouTube relegated the speech to its “Restricted Mode” setting. YouTube’s restricted mode setting categorizes videos based on the video’s title, language, transcripts, and metadata and filters out the video to prevent users/companies from accessing inappropriate content. Much of Prager University’s content covered abortion, Islam and terrorism, and gun rights. Prager U argued that YouTube held opposing political views and therefore blocked third parties from advertising on their videos. In February of 2020, the Ninth Circuit ruled in favor of YouTube, declaring that since YouTube is not a state actor nor is its platform a public forum, it did not violate the First Amendment by placing Prager U’s content on restricted mode.
This decision comes on the heels of a Second Circuit ruling, which concluded that President Trump violated the First Amendment when he blocked a critic on Twitter. The Court determined that President Trump used his twitter account in his official capacity as president and was therefore acting as a state actor. State actors, contrary to social media platforms, are subject to First Amendment restrictions and cannot suppress others’ views by blocking users from commenting on their messages. Government officials cannot violate or restrict citizens’ First Amendment rights, however private companies like Twitter and YouTube, have full discretion to restrict and edit people’s views. In October of 2020, Twitter and Facebook—acting within their rights as private companies with the right to edit and suppress speech at their discretion—blocked a post by President Trump alleging that the flu poses a greater threat to life and limb than the novel Coronavirus.
Give a man the world and he will crown himself king and control the speech of those around him. Twitter, YouTube (owned by Google), and Facebook are global companies, with billions of active users. Facebook alone has 2.7 billion users, nearly a third of the world population. These social media companies make the bulk of their income through advertisements. Although the general public uses these platforms to share content, advice, and news, the clients are the advertisers, and when the content created by users is too extreme on either side, the advertisers are less likely to attach their ads to that platform. As a result, social media companies will take down extreme content. In this way, the social media companies are dictating the tone of American speech. But should companies like Twitter, YouTube, and Facebook be allowed to edit the content created by the general public or even worse, ban the content based on what advertisers are more likely to target for their advertisements? Moreover, should social media companies operate under a governmental umbrella subject to the political and economic views of whatever political entity holds the power at the moment? Or is there a way to save our free speech as we evolve into an online world through an antitrust suit—forcing these mega media companies to splinter into smaller companies—thus ending their monopoly of social media and their reign on our free speech, while still adhering to a politically neutral antiviolence policy?
In 2019 the Federal Trade Commission (FTC) investigated Facebook, Google, and other giant tech companies for protecting their monopoly in the market. Facebook bought out two competitors, WhatsApp and Instagram, while Google purchased YouTube. To continue its monopolistic hold on search advertising, Google is paying Apple $12 billion dollars a year to be the premiere search engine, cementing its dominance on search and search advertising. Google and Apple have partnered since 2005. The consolidation of different social media companies under the umbrella of two or three companies and the per se co-opetition between the conglomerates render free speech on social media implausible, dependent on the advertisers’ dollars.
Breaking up media companies that yield too much power is not a new concept. AT&T, formerly known as Ma Bell, one of the largest telecommunications companies in the world, has been the responding party to many antitrust lawsuits by the US Justice Department. It was forced to relinquish its control of telegraphy and license out many of its patents. As a result, the transistor patent was licensed out and the first computer was born. Progress depends on ideas, and competing ideas must be present to promote innovation.
In October of 2020, the Department of Justice (DOJ) filed an antitrust lawsuit against Google. Antitrust laws protect consumers from predatory business practices and prevent businesses from maintaining a market stronghold disenfranchising competitors. The DOJ alleges that by tying social media content, which means social media users’ opinions and videos to advertisers’ likes or dislikes, Google has created a false, homogenous display of information, ignoring opposing views. The effect is akin to censorship and sets a dangerous precedent for freedom of speech. To counter this undue influence and encourage competing interests and voices the Justice Department must act swiftly to ensure conglomerates like Google and others divest their monopoly in our virtual parks—social media.