Lex Indicium

Today’s internet users who might not be familiar with the Wild West that was the early internet might wonder how social media and other online service providers (and their users) “get away with” saying or publishing all manner of content on the web, including incendiary, defamatory, or just plain false information. The administration’s recent suggestion that it might assert executive power over social platforms has brought this issue back to the fire in an interesting way. This post is not meant to be a deep dive into the evolution of the law around expression on the web – but is intended to provide some guideposts for those who are watching this space.

Constitutional Freedom of Expression

Under the first amendment to the U.S. Constitution, everyone gets to say whatever they want, right? That’s more or less correct, but over the years courts have also limited your rights of expression with what are called “time,” “place,” and “manner” restrictions.  So you can’t go into a movie theatre and yell “fire,” because doing so might endanger the lives of others.  Analogously, when you express yourself in a public forum, including on the web, your freedom of speech doesn’t mean you are entitled to incite violence, disturb the peace or endanger others.

Similarly, although people can say anything, your constitutional freedom of expression doesn’t exempt you from claims that your words invade or violate others’ right to privacy, or to be free from libel or slander.

But perhaps most importantly, your constitutional right of expression is pretty much non-existent on social media, because those platforms are privately owned.  Your constitutional rights are effective as between you and the government.  If a government official tries to stifle your rights, you have a constitutional claim again that official and the agency with which he works.  But if your boyfriend shuts you down on social media, you can’t sue him for violating your constitutional rights.

Speakers versus Publishers and the 1996 Communications Decency Act

Another issue that gets in the way of understanding exactly what is tolerable behavior online is determining who is responsible when online speech or conduct becomes harassing, annoying or illegal.  In the early days of the internet, there was a line of reasoning that suggested that online service providers (such as internet browsers, search engines or social media platforms) were “publishers” of information, in the same way that newspapers and book publishers were.  Newspapers and publishers are legally liable for the content they publish and can, for example, be liable for defamation, libel, slander, misrepresentation and other torts even if the words, thoughts and ideas are those of another person.  Service providers in the early days of the internet quickly argued that making them “publishers,” and assigning them liability for the speech of others, would kill innovation by ensuring that such providers could never afford the liability or the resources necessary to police online activity.

As a result, Congress gave us Section 230 of the Communications Decency Act in 1996 (the “CDA”).  That law exempted service providers from liability normally ascribed to a publisher by stating in relevant part that:  “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Effectively, these 26 words in the CDA immunize service providers from liability for statements made by others using their service.  CDA immunity is not limitless, however.  Service providers can be held liable for criminal activity and intellectual property violations (for example) taking place on their platforms.  Furthermore, importantly, the CDA provides zero protections to speakers, writers, tweeters or bloggers themselves.  If your speech online is actionable, you, as the speaker, are liable regardless of whether the platform that published your words is liable.

Contractual Limits on Behavior

In addition, use of online forums is governed by simple contract law.  When you signed up for Twitter, Facebook and Instagram, you agreed to the pages of terms (and probably all amendments to those terms) that came along with signing up.  Virtually every service provider retains the right to bar or limit your activities, and edit your content, and urges you not to use the platform to harass, demean, incite violence or publish obscenity, among other terms.  These contractual obligations generally have been shown to be quite enforceable against users and often result in being banished from the service for a time if users violate them.

Recently, the Trump administration has suggested that CDA immunity has allowed service providers too much leeway in avoiding liability, and that, as private companies, their use of contractual provisions to control and edit posts is unfair.  As a result, the administration has suggested the CDA’s immunity should be revoked and replaced by some kind of rulemaking process and mediation of content set by and/or overseen by the Federal Communications Commission or the Department of Commerce.    Ironically, such an act would mean that the U.S. government would be put into the position of determining the scope of and/or limiting the free speech rights of internet users, bringing the fundamental constitutional rights of expression that so far do not apply to social media, back into play.

So each time you are on social media, whether lurking or actively posting remember that generally:

• The freedom to post on the service has virtually nothing to with your constitutional right to free speech as these platforms are all privately held and do not need to protect your constitutional rights.
• Furthermore, each social media service provider, under current law, can enforce its contractual terms of use to allow or restrict your access to the platform and/or to allow or limit what content is acceptable on the platform.
• If we roll back the protections of the CDA, as the current administration has suggested it’s quite likely that service providers will further restrict who can use services and under what circumstances.
• If the U.S. government or other state actors begin to arbitrate the scope and content of online speech on social media, then that could trigger constitutional protections for the speakers and put the government in the position of severely violating those protections.