In the era of constitutional ratification, the Founders of the United States faced the task of creating a system of government that would not allow for potential tyranny. At this time, the world had seen widespread persecution and abuses by governments toward its citizens. The US Constitution was designed under the belief that the biggest threat to liberty was the government. As Thomas Jefferson said, “a bill of rights is what the people are entitled to against every government on earth.”
Albeit with some limitations, the First Amendment protects the liberty of individuals by guaranteeing their right to speak freely without fear of government censorship. This made sense during an era when the medium of speech consisted primarily of the public square and the press, and the threat of censorship stemmed largely from the government.
There is little doubt that those living at the time of ratification – still in the early years of the Industrial Age – would have had no way of conceptualizing the monumental advances made in communications technology leading up to the 21st century. In those early years, the primary methods of communication involved verbal and written correspondence. The notion of instant communication and the ability to share information between groups of people around the world on an invisible medium would have simply been unimaginable at the time. It stands to reason then that the issues stemming from such advancements that we now face would not have been adequately foreseen.
The advent of social media in the early 2000s revolutionized the way we communicate and absorb information. Instead of having information fed to the public through limited channels of communication, social media has allowed information to flow from an almost endless number of sources. While this decentralization would seemingly allow for greater access to information, the complexity and expertise necessary to run such a system also led to the consolidation of such platforms in the control of a few select companies. Add to this the fact that social media has become so prevalent as a medium for the exchange of information and ideas, and you suddenly run into some of the same issues the First Amendment was written to protect – namely, the ability for individuals to express themselves freely.
In the wake of the highly politicized election in 2020 coinciding with the removal of some prominent figures from social media platforms, the issue of censorship by large technology companies has garnered some attention and criticism from both ends of the political spectrum. Some states – most notably Florida and Texas – have proposed new laws that seek to limit the ability of social media companies to restrict content on their platforms (albeit for political reasons), although these efforts have been blocked by the courts.
This issue should be of bipartisan concern. Regardless of whether the speech being censored aligns with – or is repugnant to – one’s own sense of truth, the precedent set by allowing a select number of private companies to control the mediums of speech is dangerous to all points of view in the future. Just as it was impossible for the Founders to envision a world with social media, it is impossible for us to predict what future mediums of speech will be. It is likewise impossible to predict which entities will control them. So even one who is comfortable with the current state of affairs should be concerned with how such power might be wielded in the hands of future generations.
But the underlying principle of freedom of speech and expression that the Constitution sought to protect should remain a guide as to how we address these issues. The most effective way to ensure an enduring free society that protects the rights of those marginalized is to ensure that the “public square” – whatever that may look like or morph into in the future – be placed outside the control of a few, whether that be government or nongovernment entities.
This issue should be able to garner bipartisan support. While this proposal on its face might seem more appealing to those on the political Right who see social media companies as censoring conservative viewpoints and would welcome a way to rein in what they see as abuses of power from such companies, this should be able to appeal to those on the political Left as well. Those on the political Left who are typically more concerned with the issue of rampant misinformation and harmful content online should not be satisfied leaving the responsibility of moderating such content to social media companies.
To adequately protect free speech, those from aisles of the political spectrum must agree that unfettered control of the main mediums of speech concentrated in the hands of a few companies is dangerous, even if there exists content that should not be allowed to remain online. Since most people recognize there is a happy balance between too much restriction and too much freedom, we can set up laws which provide clear guidance to companies: not only what content they must restrict, but also what content they may not restrict. Where this line is to be drawn will admittedly be subject to contentious debate. This line may also need to change over time. But at least there will be such a line that protects free speech from threats beyond that of government.
* Moshe Gottesfeld is an Associate Editor on the Michigan Technology Law Review.