Video: First Amendment Rights and Social Media
Free Speech and Free Press Committee Co-Chair Frank D. LoMonte answers this question asked by a high school student from California, "Why Are My First Amendment Rights Limited and Restricted on Social Media?", in the above video.
Public Opinion Online
Q: Should there be a limit to how much public opinion can be shared online? Ryann from Texas
A: Whether speech on social media should be restricted – and, if so, by whom – is a huge subject of debate. There’s no question that social media has had profound effects on society in both positive and negative ways. It has enabled people to build and maintain ties across great distances, find long-lost friends, and launch successful charity fundraisers and awareness campaigns. But there is also growing evidence that it contributes to negative body image among young women, among other harmful downsides. And it’s well-documented that the “viral” nature of social media makes it much harder to contain the spread of rumors and disinformation, including “fake news” that can affect the outcome of elections.
The problem with trying to “clean up” the quality of dialogue on social media is: Who gets to decide? The First Amendment has always been understood to curb the government’s power over speech, for good reason: We don’t want government officials silencing their critics. With newspapers and television stations increasingly owned by a small group of huge corporations, social media is the only effective channel for an ordinary person to reach a wide audience. We should be skeptical of any attempt to put the government into deciding whose speech is too extreme or outrageous to be heard. (If you had given a speech supporting legal same-sex marriage in 1970, that would’ve been considered pretty extreme and outrageous. Today, it’s the law. So, the freedom to express non-mainstream ideas helps the culture evolve.)
That leaves the social media platforms themselves to set the standards for what appears on their pages. Newspapers and magazines have done this for years, through guest columns and letters-to-the-editor, exercising judgment over which contributions are worth sharing. The difference, of course, is volume: More than 500 hours of video are uploaded to YouTube every minute, and YouTube simply doesn’t have the staffing to pre-watch every one of these videos before it is shared. After they were blamed for helping spread misinformation during the 2016 presidential campaign, Facebook, Twitter and other platforms took some steps to self-regulate more aggressively. During the summer of 2020, Facebook reported taking down 7 million posts containing false information about COVID-19 and vaccines. But with 2.2 billion worldwide users, Facebook can’t catch everything. And even though some people would like to see social media platforms scrub their sites more aggressively, others argue that the scrubbing is already too heavy, and that their posts have been taken down – or accounts frozen – without a good reason. So, the platforms are in a bit of a no-win position.
The federal courts have always said that the best response to “bad speech” is not government censorship, but “good” counter-speech. That’s a great First Amendment principle, but it may need some 21st century updating: The best response is counter-speech and a rigorous curriculum of critical-thinking skills throughout K-12 education and college, so people can be trained to detect and reject low-value speech for themselves.
Freedom of Speech and Social Media
Q: Why are my freedom of speech rights limited and restricted on social media? Ella from California
A: Where a school’s authority over social media begins and ends is a question being debated in courts around the country. There is quite a lot of uncertainty about whether a school can discipline students for what they say off-campus when they are not attending school events or using school computers.
When a student is speaking on-campus to a “captive audience” of fellow students, the Supreme Court gives public K-12 schools the authority to restrict or punish their speech if there is reason to believe that the speech will “substantially” disrupt school functions. That would include provoking fights, inciting people to walk out of class, and so on. The question is whether that same level of control applies outside of school grounds and school hours.
Recently, the U.S. Supreme Court ruled in favor of a Pennsylvania high school student, Brandi Levy, who used Snapchat while off-campus to rant about her anger at being left off the varsity cheerleading squad. The justices ruled in favor of the Levy family and against the school. They said just using curse-words to voice frustration with the school is not a “substantial” disruption when the student is outside of school on personal time, even if dozens of other students saw the post. In that Supreme Court opinion, the justices said schools rarely will have the power to punish off-campus speech if it is about political or religious issues, or if it is expressing criticism of the school. But schools have more authority, they decided, if the speech looks like cyberbullying of other students, which might spill over and interfere with school. The bottom line is that anything that appears threatening toward the school, its employees or its students will be deemed punishable no matter where it takes place, but merely making offensive remarks is protected by the First Amendment and can’t be grounds for disciplinary action. Because this is a brand-new Supreme Court opinion, the lower courts will have to decide in the coming years exactly how it applies in different factual situations, since no two cases are exactly alike.
Many schools have rules or policies that do not fully align with First Amendment rights, and students and their parents should not be afraid to challenge these restrictions if they seem heavy-handed. If a school policy forbids “inappropriate” or “negative” comments on social media, then the policy violates the First Amendment and should be rewritten.
Exercising Asian American Rights
Q: I am full Asian (Korean). Will there be any consequences/problems if I stand up for American rights as an Asian? And what are my rights if I do happen to stand up for it or protest? Neal from California
A: Thanks for this question, Neal. A number of guarantees in the Constitution and Amendments mean that you cannot be discriminated against because of your heritage, in other words that you enjoy full rights. So if you engage in a protest, the question should not be about your background or national origin. Standing up for rights is generally a protected activity. But not all protests are protected. If a protest causes substantial disruption at school or illegal action in the community, then it might not be protected. It depends very much on the circumstances. For example, a protest that disrupts traffic and has no permit from local officials might be unlawful, or a protest that causes destruction of property could lead to criminal charges. But with those exceptions, protest is an important part of our rights in the United States.
Rights during Public Protest
Q: If riots were to break out during a protest, what are the punishments? What if you weren’t participating in the riots and trying to get out of the situation but are arrested? Spencer from California
A: The U.S. Supreme Court has said that someone who causes a riot that leads to illegal conduct may be punished for inciting that riot. The punishments will vary widely under state or local law, or perhaps on federal law, depending on where the riot takes place. A person who is present at a riot but does not participate and does not engage in illegal action should not be punished. But sometimes it is a gray area as to when someone was merely present or even trying to get away and when someone took part in illegal activity. Sometimes police will round up everyone present until they can sort out who was involved in illegal activity and who was not. Unfortunately it may be difficult at times to show that you were just a bystander and not a participant.
Free Speech Rights
Q: Is freedom of speech an absolute right for some and not for others? Oumar from Washington, D.C.
A: Freedom of speech is rarely an absolute right, if ever. The strongest rule from courts interpreting the First Amendment is that governments cannot discriminate in favor or against a particular viewpoint. But otherwise, free speech is subject to a variety of restrictions and tests that have been created by the Supreme Court.
2 Questions on The Right to Protest at School
Q: Are students able to have the right to protest at school? Kennedy from Oklahoma
Q: What are my rights to protest at school, whether a small act such as refusing to stand for the pledge of allegiance or larger events such as organizing a march with students? Sam from California
A: These are excellent questions. Your right to protest is part of your right of free speech, protected by the First Amendment to the Constitution. Everyone has a constitutional right to protest, and a school may not stop a protest simply because they don’t like what you want to say. The Supreme Court has said that when analyzing the right to protest at schools, two factors have to be considered. One is your right to protest, and the other is the school’s responsibility to provide a safe environment for people to learn. The school can limit forms of protest that would be potentially dangerous or disruptive.
One way to understand your rights is to look at examples that the Supreme Court has considered.
In an important case from 1943, during World War II, the Board of Education in West Virginia made a rule requiring all public school students in the state to salute the flag and say the Pledge of Allegiance. A group of students refused because they were Jehovah’s Witnesses and it was against their religion - they were expelled because of their refusal. The Supreme Court found that rule violated the students’ right to choose not to salute the flag, and that the rule could no longer be enforced. The Court said that government officials are not allowed to force people to say something they don’t believe in.
In another case, a school in Iowa learned that students were planning to wear black armbands to class in order to protest the war in Vietnam. The school created a rule against armbands and suspended students who refused to take them off. The Court decided that the arm bands were a form of protected free speech protesting the war and that the simple act of wearing an armband at school was not disruptive to learning. The school, then, was wrong to not allow them.
Since then, there have been several cases where the Court found that schools had a good reason to limit students’ right to protest.
- For example, a school can control what stories go into a school newspaper published as a part of a journalism class to ensure that the paper maintains its educational purpose.
- A school can suspend a student for giving a speech at an assembly filled with foul language, because foul language is disruptive to the assembly and isn’t a necessary part of expressing a protected political opinion.
- A teacher can make a student take down a sign advising people to do something the school feels is dangerous, because the school has a responsibility to look out for students’ well being.
So, in answer to Sam’s particular questions, the Court has said that you have a right not to say the Pledge of Allegiance. However, organizing a march would be much trickier, because a march could be disruptive to learning and could pose safety issues that the school has an obligation to oversee.
Right to Record
Q: What are my rights in regards to filming during protests and filming the police? Olivia from California
A: The First Amendment protects your right to record encounters with law enforcement. It is important to note, however, that you must do so in a manner that does not interfere with the police activity. For example, if an officer asks you to back up, you should comply.
Hate Crimes and Free Speech
Q: In the area of hate crimes, what are some of the issues in balancing free speech rights against the need to control offensive activity? A high school student from Arkansas
A: The challenge is to distinguish between offensive speech, which is generally protected by the First Amendment, and offensive conduct, which may be made criminal and punishable. This is not always an easy line to draw, and there is always debate and controversy about what the law should protect.
The basic principle as to speech is that government should not be able to decide what to censor or prohibit based on notions of what may be too offensive. The reason was well-expressed in a 1971 Supreme Court decision: “One man’s vulgarity is another’s lyric.” In other words, once you give government the power to ban expression because it is offensive, whose values does it represent and where does it stop.
But the Supreme Court has said that government has more authority and leeway when it is regulating conduct that is separate from the message of expression. As a result, the Court has upheld a Wisconsin law that enhanced the punishment of a defendant who selected his victim based on his race and has upheld a Virginia law that makes cross-burning a crime. Expression was implicated in both cases, but the criminal punishment was for actions not for the content.
The Supreme Court’s own rulings have contributed to current debate over how to treat hate speech. The Court has said there are certain kinds of speech that are not protected by the First Amendment because they do not contribute anything of value to informing democracy. These categories of unprotected speech include incitement to lawless action, fighting words, true threats, obscenity, and child pornography.
In the debate over hate speech, some commentators have asked why it could not be another category of unprotected speech. Other commentators have suggested that hate speech could be encompassed in the definition of fighting words – words that are so insulting and are aimed at an individual that they are likely to provoke a fight or a violent reaction. Neither approach has taken hold in the courts, in large part because of the problem of defining what is hate speech and of who gets to decide.
The line the Supreme Court has drawn between protected speech and unprotected conduct is not a simple one to follow, but it has provided some guidance to U.S. courts about where speech ends, and criminal conduct begins.