Social Media Platforms and Lessons from January 6
There remains a common misconception that social media is subject to the constraints of the First Amendment. It certainly isn’t, and the platforms don’t ‘censor’ speech – because that’s something only the government can do. Instead, the platforms act in accordance with their editorial discretion. Yet even that is not technically simple.
Due to Section 230 immunity, as noted by Seth C. Oranburg, Associate Professor of Law, in an article for Duquesne University, the platforms are also authorized to exercise editorial discretion without incurring any liability on third-party content (tweets, posts, grams, videos, hashtags, discussion threads, etc.) of users. This basically means that the platforms are not responsible for any defamatory or inflammatory tweets posted by the respective users.
However, social media could still be seen as partly responsible for the Capitol Riots of January 6, 2021, as these platforms were used as a communication tool – and the various networks did little to stop them.
“Social media companies need to know that an action has consequences; and two matters of scale,” explained William V. Pelfrey, Jr., Ph.D., professor at Wilder School of Government and Public Affairs at Virginia Commonwealth University.
“A person with 40 followers is very different from a person with a million followers,” Pelfrey said via email. “Review and regulatory efforts must be commensurate with the possible implications of the post and the background of the person posting it. Social media companies have an ethical responsibility to review posts by people with problematic and to quickly block or delete dangerous posts. January 6 should have taught the leaders of social media organizations that actions have consequences. Conversely, not taking action – or deleting/blocking a post/tweet – also has consequences. Continued abrogation of ethical responsibilities to protect the public will likely lead to government regulation.”
In fact, it could be argued that, as it stands, social media platforms are not restricted by the First Amendment, but those same platforms enjoy many of the protections guaranteed by it.
“Users are free to post their own content and social media companies are simply the vehicle for that content,” Pelfrey continued.
“If someone posts a direct criminal threat, social media companies must one, remove that post; and two, notify law enforcement. For example, if someone posts ‘I’m bringing a knife to the school tomorrow and I’m going to stab you’ which is a direct threat of violence requiring investigation and action by law enforcement.”
Yet, as we have seen in recent mass shootings, these obvious “red flags” are largely glossed over or even ignored.
Then there’s the question of what politicians and other “authoritative” figures often say on social media. This has often been taken as hyperbole. The question is whether these types of comments should be taken more seriously.
“When someone, like a high-level political leader, says, ‘Voters need to stand up, demand change, and cast off their oppressors,’ there is no clearly expressed imminent threat,” Pelfrey added. “One could reasonably interpret this as a call to political action. If one is so inclined, they could also interpret this as a violent call to action. Social media companies are supposed to be self-regulating and they have all have policies stating what posts/tweets are allowed and what are not.These policies are subjective with questionable application, which is why some political leaders are considering imposing regulatory mechanisms on social media companies.
The question is whether social media platforms will actually react to these issues or if things will continue as usual. Pelfrey said changes could happen, but only because companies are forced to.
“Eventually, social media companies will likely be forced to change, either through government-imposed mandates or as artefacts of accountability,” he suggested. “Lawsuits against gun manufacturers represent a viable analogy. It took years and a myriad of lawsuits, but courts and juries are now holding gun companies accountable for misleading gun advertising. .Social media companies could one day find themselves on the wrong side of a lawsuit if they fail to act responsibly.”