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.
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