Tag Archives: Section 230

Freedom of Expression in The Age Of Powerful Technology Corporations

The following paper was turned in last night for my Media Organization Regulations class at Webster University. It is not graded yet. Enjoy!

Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
1 November 2020

Freedom of Expression in The Age Of Powerful Technology Corporations

Freedom of expression is the right to disagree, to assemble in protest of laws and to publish and disseminate opinions, ideas and beliefs (Baran and Davis, 64-65).  Freedom of expression is considered central to democratic self-government and is therefore described, though not in those exact words (“Bill of Rights…”), in the Bill of Rights (Baran and Davis, 64-65).  In 1927, the Supreme Court found against the plaintiff in the case Whitney v. California, a ruling that was overturned in 1969 (Belpedio).  This case was heard to decide whether or not the arrest and conviction of a Communist political activist in 1919 was in violation of the 14th Amendment of the U.S. Constitution (Legal Information Institute).  Part of the written opinion of Justice Louis Brandeis caused some to question why he voted against the plaintiff in Whitney v. California since his defense of freedom of expression was eloquent and widely influential (Belpedio).  Justice Brandeis’ words have been interpreted as a “virtual declaration of absolute free speech” (Belpedio).

A present-day issue that Justice Brandeis illuminated in his prescient comments from 1927 is the regulation of speech by corporations that are popularly known as “Big Tech” (“Does Section 230’s…”). On October 28, 2020, the United States Senate Committee on Commerce, Science, and Transportation held a hearing on current internet law and whether or not it is sufficient in the present day to ensure the free exchange of ideas in the online environment controlled by Google, Twitter and Facebook (“Does Section 230’s…”).

A study by the Pew Research Center found that as of 2018, social media had surpassed print newspapers as a source of news, accounting for 20% of the news audience (Shearer).  The study also reports that 33% of adults in the U.S. consume news content from online web sites (Shearer).  Since Google is the largest provider of internet search results, with a nearly 88% market share in the United States (StatCounter), having influence over potentially nearly 43% of all news content puts these three big tech companies in powerful positions.  In a 2016 TED talk, referring to the platforms Twitter, Facebook and YouTube, internet freedom activist Rebecca MacKinnon stated “… we do know that journalism, activism and public debate are being silenced in the effort to stamp out extremist speech.  So with these companies having so much power over the public discourse, they need to be held accountable” (MacKinnon). YouTube is owned by Google LLC (YouTube).

Concerns about the freedom of expression in search results and within social media platforms in the face of this power have been growing in recent history.  On its web page “Digital Bill of Rights”, the stance of Adbusters, a nonprofit network of artists and activists declare that “It is high time that digital citizens, in the face of rampant techno-tyranny, openly mount a resistance to take back our mental space by force” (Adbusters “Digital Bill of Rights”).  73% of U.S. adults now suspect that social media companies intentionally block political content that they don’t want users to see (Vogels et al).

The Big Tech companies that the Senate investigated on October 28, 2020 are not legally required to allow their users rights as described in the First Amendment, which restrains government action only (Rosen).  The law that the recent Senate hearing choose to focus on is Section 230 of Communications Decency Act (DCA) of 1996 (“Does Section 230’s…”).  Section 230 does not address whether or not the platforms can legally restrict political opinions – it addresses immunity from lawsuits on other matters such as libel, because the platforms claim they do not influence content (Trager 210).  It appears that it could be argued Section 230 immunity should not be applied to Facebook, Google and Twitter because they do “interact directly with content” in an attempt to cultivate attitudes to make the culture of the United States more like Europe (Rosen, Trager 210).  In Europe, safety and propriety are valued more than freedom (Rosen) while the culture of the United States accepts more risks.  In the words of Justice Brandeis, “Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary.  They valued liberty both as an end and as a means.  They believed liberty to be the secret of happiness and courage to be the secret of liberty” (Baran and Davis 65).

Users who are attracted by the promise of free speech have been turning to alternative platforms that are perceived to be less restrictive than the three tech companies that the Senate Hearing examined.  Parler appeals to unhappy Twitter users by claiming to offer an environment with more freedom and corporate accountability (Parler).  Articles suggesting alternatives to Google and Facebook describe platforms that users concerned about data mining and privacy issues can try out (Broida, Taylor).

The movie industry’s voluntary Hays Code, which was in effect from 1934-1965 was intended to reduce public outrage and stave off possible future government regulation of motion picture content (Hays Code).  The power of the medium of television and its effect on violence in children led to the threat of possible increased government regulation and in turn self-regulation by the industry in the late 1960s and early 1970s (Baran and Davis 166-167).  The Big Tech companies might choose in the future to follow the lead of the movie and television industries that proceeded them and do more self-policing in order to better align their European-inspired standards to the expectations of the American public.

Works Cited

Adbusters. “Digital Bill of Rights”. 1989-2020, www.adbusters.org/articles-coded/digital-bill-of-rights, Accessed 1 November 2020.

—. “Mind Journey #11”. 1989-2020, featured.adbusters.org/mindjourney/011/, Accessed 1 November 2020.

—. “‘The Social Dilemma’ director hopes to spark a movement” 1989-2020, www.adbusters.org/the-pulse/the-social-dilemma-director-hopes-to-spark-a-movement, Accessed 1 November 2020.

Baran, Stanley J. and Dennis K. Davis. Mass Communication Theory: Foundations, Ferment, and Future. Seventh Edition. CENGAGE Learning, 2015.

Belpedio, James. “Whitney v. California (1927)”. The First Amendment Encyclopedia, 2009, mtsu.edu/first-amendment/article/263/whitney-v-california, Accessed 1 November 2020.

“Bill of Rights of the United States of America (1791).” Bill of Rights Institute, 2020, billofrightsinstitute.org/founding-documents/bill-of-rights/. Accessed 26 October 2020.

Broida, Rick. “Social-media alternatives to Facebook.” CNET, 2018, www.cnet.com/how-to/social-media-alternatives-to-facebook/. Accessed 1 November 2020.

“Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior?”. U.S. Senate Committee on Commerce, Science & Transportation, 2020, www.commerce.senate.gov/2020/10/does-section-230-s-sweeping-immunity-enable-big-tech-bad-behavior, Accessed 1 November 2020.

Greenwald, Glenn. “Article on Joe and Hunter Biden Censored By The Intercept”. Glenn Greenwald, 2020, greenwald.substack.com/p/article-on-joe-and-hunter-biden-censored, Accessed 1 November 2020.

“Hays code.” Siteseen Limited, 2017-2018, www.american-historama.org/1929-1945-depression-ww2-era/hays-code.htm. Accessed 14 September 2019.

Legal Information Institute. “WHITNEY v. PEOPLE OF STATE OF CALIFORNIA”. Cornell Law School, 2020, www.law.cornell.edu/supremecourt/text/274/357, Accessed 1 November 2020.

MacKinnon, Rebecca. “We can fight terror without sacrificing our rights.” TED Conferences, LLC., June 2016, www.ted.com/talks/rebecca_mackinnon_we_can_fight_terror_without_sacrificing_our_rights/transcript. Accessed 1 November 2020.

“Parler”. Parler, Inc., 2020, www.parler.com/auth/access. Accessed 1 November 2020.

Rosen, Jeffrey. “The Deciders: The Future of Free Speech in a Digital World”. Harvard Kennedy School Shorestien Center on Media, Politics and Public Policy. 2016, shorensteincenter.org/jeffrey-rosen-future-of-free-speech-in-a-digital-world/, Accessed 1 November 2020.

Shearer, Elisa. “Social media outpaces print newspapers in the U.S. as a news source”. Pew Research Center, 2018, www.pewresearch.org/fact-tank/2018/12/10/social-media-outpaces-print-newspapers-in-the-u-s-as-a-news-source/, Accessed 1 November 2020.

StatCounter. “Search Engine Market Share in United States Of America Sept 2019 – Sept 2020”. October 2020, gs.statcounter.com/search-engine-market-share/all/united-states-of-america, Accessed 1 November 2020.

Taylor, Sven. “Alternatives to Google Products”. Restore Privacy, LLC, 2019, restoreprivacy.com/google-alternatives/. Accessed 1 November 2020.

Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass communication. Sixth Edition. SAGE Publications, Inc. 2018.

Vogels, Emily A., Andrew Perrin and Monica Anderson. “Most Americans Think Social Media Sites Censor Political Viewpoints”. Pew Research Center, 2020, www.pewresearch.org/internet/2020/08/19/most-americans-think-social-media-sites-censor-political-viewpoints/, Accessed 1 November 2020.

YouTube, 2020, www.youtube.com/. Accessed 1 November 2020.

 

If you want to delve deeper into this and related topics, I have links to a lot more resources on a Pinterest Board: Media Analysis: Communications and the Law

First Amendment and Bill of Rights Refresher

I’m currently in Media Organization Regulations class. That means I’m going to be writing about where media communications and the law intersect. As I have been doing since I started graduate school, if there is anything I think my blog readers might enjoy or find useful I’ll be publishing some of my assignments here. In our first assignment for this class, we were tasked to write about the First Amendment to the US Constitution. I needed some refresher reading on the First Amendment in order to write this, as I haven’t studied this kind of material in school for a LONG time.

The Bill Of Rights was added to the US Constitution immediately after ratification as a sort of compromise to reassure those who feared that a stronger central government would lead to the infringement of individual liberties. There were those who believed these rights were protected sufficiently in the individual state constitutions and therefore didn’t need to written out, and others who feared that writing them out would imply that the list was exclusive and implying there were no other rights (Thernstrom 177-178).

One thing I and probably others have to keep reminding myself of is that our form of government was founded on the premise that our constitution or government is not giving these rights to us, but is spelling out the rights we already have. That’s a profound difference in attitude than I frequently perceive from some people who are in government, campaigning to be in government, some media institutions and large corporations. What is your opinion on my perception?

“Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
25 October 2020

The First Amendment guarantees freedom of religion, assembly, press and speech (Trager et al 9, Silverblatt 30). First Amendment rights to free speech are considered by most historians to have been initially intended to prohibit the restrictions that the American colonists feared would be established under British rule (Trager et al 56-57). Although actual licensing of presses was no longer practiced in the home country, punishment following the publishing or speaking of certain content did appear to be a method that could be used to suppress speech and ideas that those in power considered subversive (Trager et al 56-59). In colonial times up to the present day in the United States, the level of punishment for certain kinds of speech and the level of requirement to promote or allow the diversity of speech or ideas is constantly being tested and litigated (Trager et al 56-61). New technology and forms of media have caused the purpose and philosophy of free speech to be constantly re-evaluated (Trager et al 62-68, Baran and Davis 65).

Other than protecting speakers from unjust punishment, another purpose of the First Amendment was to ensure that the new country would develop in a climate where individuals would hear a diverse selection of ideas and then choose what ideas they found the most beneficial from a free “marketplace” (Silverblatt 129). In the United States, the idea of giving technocratic control of the media to the government was considered but rejected (Baran and Davis 62). With the rise of social media and their use as virtual public forums, corporations are trying now to take on the technocratic control of speech and ideas themselves (Baran and Davis 66). There is precedence in the law that private property used in the manner of a traditional public space can be required in some cases to allow “public gatherings and free expression” (Trager et al 82). What will the courts decide in the future about virtual public space that is owned by a corporation?

There is a distinction between “prior restraint” in which the government must approve the publication of content, and punishment after the fact for harm caused by certain kinds of speech (Trager et al, 57). Even with the First Amendment in place, both kinds of restraint on speech are sometimes allowed, but the necessity for prior restraint is much harder to prove in court (Trager et al, 64-67). Content neutral laws are more likely to withstand scrutiny (Trager et al, 68, 71), as are laws that restrict speech as little as possible in order to achieve what the government’s compelling interest is alleged to be (Trager et al, 71).

Although not intended to, the First Amendment could be seen to help protect individuals from being punished by private organizations and employers in a sense. Some states, cities and territories cite the First Amendment in laws that prohibit discrimination against employees for political speech and activities (Volokh). Usually though it is anti-discrimination laws inspired by the First Amendment that apply to a private employer, not the actual First Amendment (Freedom Of Speech…). Government employees are more directly affected (Freedom Of Speech…).”

I’m going to list here the complete Bill of Rights, according to the Bill of Rights Institute, because I and probably a lot of other people need a refresher (Bill of Rights of…).

1 – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

2- “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

3- “No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”

4- “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

5- “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

6- “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

7- “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”

8- “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

9- “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

10- “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Now I’m going to quote extensively from our textbook, “The law of journalism and mass communication” (Trager et al 61). Following is a list of “Core Values of Free Speech”, which are often cited in Supreme Court decisions that have to do with free speech issues. For one of our assignments we had to make predictions about what new Supreme Court cases we might expect to see in the near future that have to do with the First Amendment. I was very impressed with this list of values derived from sources ranging in time from 1698-1996. You no doubt have your own ideas about what cases we can expect to see or what you would like to see. Are these the values you want to court to consider?

  • Individual liberty. The freedom of speech is deeply intertwined with fundamental natural rights. In this sense, free speech is an inalienable right.”
  • Self government. The freedom to discuss political candidates and policies and to render judgements is an essential cornerstone of responsible self-governance. The freedom of speech enables “the people” to pursue “democratic self determination”.”
  • Limited government power. Free speech is an “invaluable bulwark against tyranny.” The free speech of “the people” serves as a “check” on authoritarian rule and a limit to the abuse of power of a few.”
  • Attainment of truth. Free speech advances the “marketplace of ideas” to increase knowledge and the discovery of truth. By challenging “certain truth” and “received wisdom”, open public discussion allows a society to expand understanding.”
  • Safety valve. Free speech allows people to express problems and grievances before they escalate into violence. Except during the “worst of times”, free speech is a mechanism for “letting off steam” and helping to balance social stability and change, compromise and conflict, tolerance and hate.”
  • It’s own end. Free speech, like clean air, or beauty, or justice, is an end in and of itself, a valuable good and a cherished right.”

Works Cited

Baran, Stanley J. and Dennis K. Davis. Mass Communication Theory: Foundations, Ferment, and Future. Seventh Edition. CENGAGE Learning, 2015.

“Bill of Rights of the United States of America (1791).” Bill of Rights Institute, 2020, billofrightsinstitute.org/founding-documents/bill-of-rights/. Accessed 26 October 2020.

“Freedom Of Speech In The Workplace: The First Amendment Revisited.” Thomson Reuters, 2020, corporate.findlaw.com/law-library/freedom-of-speech-in-the-workplace-the-first-amendment-revisited.html. Accessed Day Month 2020.

Silverblatt, Art et al. Media Literacy: Keys to Interpreting Media Messages. Fourth Edition. Praeger, 2014.

Thernstrom, Stephan. A History of the American People: Volume One: To 1877. Harcourt Brace Jovanovich, 1984.

Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass communication. Sixth Edition. SAGE Publications, Inc. 2018.

Volokh, Eugene, “Laws Protecting Private Employees’ Speech and Political Activity Against Employer Retaliation: Covering a Wide Range of Speech.” Reason Foundation, 2020, reason.com/2020/07/26/laws-protecting-private-employees-speech-and-political-activity-against-employer-retaliation-covering-a-wide-range-of-speech/. Accessed 25 October 2020.

I’ve started a Pinterest Board for Media and Law references and resources. I will likely cite some of these during this class and read others for background information. Enjoy!
Media Analysis – Communications and the Law

There are some resources I’m not able to link to for whatever reason on Pinterest that I need for my homework. My purpose for putting them in Pinterest is because it’s an easy way to keep my resources in one place. However, for the ones I can’t put there, I’ll start collecting some here so that I know where they are and can get to them fast since I have linked the relevant Pinterest board to this article.

Other First Amendment Related Links

Winston84 – online directory of suppressed content.

Here is a link to the Senate Hearing on Section 230 that we are currently studying in my class.