Social media has been in the spotlight a lot lately. Congress has held numerous hearings on the biggest tech companies like Facebook and Google, scrutinizing their ties with foreign governments and examining their ability to protect the privacy rights of the American people. The scandals involving the 2016 general election have exposed Facebook’s ability and willingness to influence American elections under the directions of a hostile foreign power. Twitter, similarly, has faced attacks from both the left and the right; some criticize its unwillingness or incompetence to stop prominent public officials from using the platform to incite hatred and violence through false information, while others believe its community moderation guidelines amount to liberal-leaning digital censorship. Many corporations are organizing a movement to boycott Facebook’s marketing services, while conservatives are moving away from Twitter and onto new platforms perceived to be fairer to their views.
As the 2020 general election draws near, both candidates are taking clear stances on social media platforms. Former Vice President Joe Biden’s campaign issued an “Open Letter” to Facebook, denouncing its failure to help keep the election fair. President Donald Trump, by virtue of his incumbency, has undertaken more impactful actions. Recently, he signed an Executive Order that aims to regulate censorship on social media platforms. In addition, citing national security concerns, he announced imminent plans to ban Chinese platforms TikTok and WeChat from operating in the United States. This latter move has generated two lawsuits in federal court. On the TikTok front, the short-video streaming platform hired the government relations savvy Covington & Burling LLP to challenge the government’s actions. As for WeChat, a popular Chinese app notorious for its censorship, while the company itself has not initiated legal actions, a group of WeChat users formed an organization and filed a suit to challenge the administration’s action. Noteworthily, constitutional law scholar and Dean of University of California, Berkeley, School of Law Erwin Chemerinsky has filed a declaration in which he testifies to his belief that the administration’s ban on WeChat violates the First Amendment.
Why is there this obsession with social media platforms anyway? It’s no longer uncommon for TV shows to make fun of people in the past who missed the chance to be rich just because they failed to see the how big a thing social media platforms were going to become. But isn’t there hindsight bias there? I was a teenager when our parents’ generation was confused and dismissive of Facebook, and somehow over the years—perhaps after President Barack Obama’s successful campaign on the photo-sharing platform—Facebook usership has almost become the scarlet letter that signals one’s fading youth. From boomers to Gen Z, the undisputed fact is that social media platforms have become a ubiquitous public forum where people share their views.
The controversies over social media center on some fundamental ideas—namely, free speech and its societal value. Historians debate why the Framers chose to add the protection of free speech to the First Amendment. But depending on one’s legal philosophy, the Framers’ intentions should not be the only issue on this matter. Like with most normative questions, the value of free speech splits into two camps of thought: the utilitarian and the deontology. Utilitarians believe that a thing’s intrinsic value should turn on how much overall “happiness” or “goodness” the thing can generate for everyone. For these people, free speech is important because in order to have the most “correct” policies, we must have a marketplace of ideas. In the context of the value of free speech, utilitarians often believe that by maximizing the competition of ideas, we can come closest to the best way to govern and maximize the advantages our society generates for everyone.
By contrast, another line of thinkers take a more Kantian approach and believe that the freedom of expression is itself essential to human existence. When someone is prohibited from speaking, the resulting injury should be treated the same way as an injury that results from being hit by a car. Further, people must be able to express freely if they are to exist fully—that is, to variate an oft-quoted Cartesian phrase, “I speak, therefore I am.” One may also see an anti-utilitarian sentiment from the Declaration of Independence, which listed several “unalienable Rights” such as “Life, Liberty and the pursuit of Happiness.” If one sees free speech as an instance of such unalienable “Liberty,” then it is presumably implicit that the right to speak freely cannot be taken away, even if doing so may somehow maximize a society’s welfare.
Some social media practices we see today undoubtedly offend the notion of free speech under both its utilitarian and deontological formulations. Professor Timothy Wu from Columbia Law School wrote an article that carefully and insightfully documents the various ways social media platforms have created or will create situations that seriously undermine the ability of Americans to speak freely. Two large categories of speech restrictions exist. First is the more familiar form of direct censorship, which includes situations where social media platforms take down posts, restrict account activities, and/or suspend accounts following alleged violations of some “community guidelines.” The critics of this type of censorship argue that such speech regulations are inspired, at least in part, by political bias. In the context of Twitter, certain conservative groups perceive Twitter’s regulations to be liberal-biased. Users of WeChat and TikTok have complained that the platforms censor content in order to promulgate the politics of Chinese Communist Party. Both utilitarians and deontologists will find these instances of censorship troublesome. From the marketplace of ideas perspective, platform regulation creates an unlevel playing field for all perspectives to freely compete—assuming the alleged political biases do exist. During a pandemic, as we have seen in WeChat, unchecked platform censorship may delay the dissemination of critical, life-saving information. For deontologists, platform censorship inhibits the censored user’s right to self-expression and self-fulfillment.
Similarly, the second type of conduct that undermines free speech is trolling practices among users themselves. Professor Wu’s article explores the story of Lindy West, a comedian who was forced to quit Twitter after trolls bombarded her account with death and rape threats. Such practices from private users—harassment, disinformation, and disproportional propagation of one political view—no doubt also offend free speech under both the marketplace framework and the free-speech-as-right theory. Interestingly, the second challenge to free speech in a way justifies the first kind of challenge to free speech—if we view platforms’ censorship practice as merely an effort to ensure a level playing field, such practices then become justified for utilitarians, provided that the platforms can be impartial and free from governmental influences. But that does not necessarily address the concerns for those who believe that any infringement of expressive activities should be problematic and should be restricted only under certain circumstances—for instance, troll farms, highly offensive language, death threats, or expressions that infringe upon others’ privacy rights.
Unfortunately, American First Amendment jurisprudence, as it stands now, is incapable of addressing these challenges to free speech. Stemming from a series of decisions known as the Civil Rights Cases, the “State Action Doctrine” provides that the U.S. Constitution only protects U.S. citizens from governmental violations of civil liberties. Over the years this doctrine has been narrowed, and has allowed court intervention when, for instance, restaurant owners refuse to serve African Americans. Despite this, the State Action Doctrine is alive and well as applied to free speech. Over the years, the Supreme Court has held that free speech is not protected in shopping malls or on public access TV channels. Recently, the Ninth Circuit also refused to protect a conservative content-creator from YouTube’s censorship.
Is this desirable? There are a few normative critiques available against the judicial abstention from regulating private actions that undermine the right to free speech. First, this notion that private parties somehow are untouchable is antiquated, and historically has been abused in order to perpetuate harmful ideologies. The most prominent example is racism in housing and public accommodations. After the Civil War, it was thought that the abolishment of slavery would help eradicate racist oppressions against African Americans. However, racially discriminatory covenants and segregated schools and restaurants continued to subjugate people of color to second-class citizen status. The court’s unwillingness to touch private property and interfere with private actions, as manifested in the Civil Rights Cases and its progeny, obviated congressional attempts to ensure racial equality in the enjoyment of transportation facilities, hotels and inns, and theaters and places of public amusement. Today, if courts continue to turn a blind eye to the troll activities against the Black Lives Matter (#BLM) movement, which wage harassment campaigns against prominent figures and depict them as advocates for communist dictatorship, we risk losing a great opportunity to evolve as a society. On the flipside, if major platforms like Facebook and Twitter do have a left-leaning bias, then at least some genuine conservative voices are being silenced. For platforms with highly homogeneous demographics—like WeChat—courts’ failure to scrutinize its censorship practices will result in a disparate impact on Chinese Americans who will be subject to a foreign government’s censorship without due protection from their own government.
The obsolete dichotomy between state and private actions is not the only issue in federal courts’ abstention from scrutinizing social media. Somewhat related is the second problem of the identities of the private parties. Social media companies based in Silicon Valley—the private parties that allegedly should have the prerogative to regulate their own platforms—are predominantly white male. The Ninth Circuit in Prager University v. Google, Inc. held that the ubiquity of a social media platform is not sufficient to warrant an abandonment of the State Action Doctrine. But when such ubiquitous platforms are governed by a group that lacks diversity, it certainly is problematic that this very group acts as the police in all the major virtual public forums of our time.
A special control issue arises with respect to apps from a foreign country, especially when that country is known for the value it puts on the ruling party’s absolute control over all aspects of people’s lives. Specifically, while both TikTok and WeChat are private entities, under Chinese law they are also under the exceptional influence of China’s ruling political party. The normative question then arises—do we want foreign government to control major public forums, and thereby exert influence on the U.S. democratic process? As the Facebook scandal shows, the threat of foreign influence also exists for private American companies. The question is not whether influence from Chinese Communist Party or Russia is per se good or bad; it is about whether the United States, as a standalone community of free people, should be able to have a democratic process without improper external influences of any kind. Thus, we can see how the outdated State Action Doctrine is putting a foundational piece of American politics—a functioning public forum for political discourse— almost entirely in the hands of a few Silicon Valley elites and the politburos and oligarchs of foreign countries. Private property, much in the same way that it perpetuated (and continues to perpetuate) the oppression of African Americans, is usurping the federal courts’ ability to provide adequate Constitutional protection for American citizens.
Even if private actions and private property deserve absolute protection over free speech issues, there is the third normative critique that our current law will be incapable of protecting people from the Super Apps’ encroachment of civil liberties. As defined by the Founder of Blackberry, Super Apps are closed eco-systems of “many apps” that people would use every day “. . . because they offer such a seamless, integrated, contextualized and efficient experience.” These are apps that allow you to send instant messages, hail a taxi, buy movie tickets, share photos, read news, conduct business transactions, transfer files. . . all in one single application. But doesn’t this sound a lot like a corporate town back in early 1900s, where essential public infrastructures were also provided by private entities? In the famous case Marsh v. Alabama, the Supreme Court held that distributing religious literature on the sidewalks of a corporate-owned township was protected by the First Amendment. There, while the town was private-owned, the Court believed that it served a public function, and the American citizens who lived there had a strong public interest to be freely informed in the same way as their compatriots who lived in publicly owned towns. Property rights, when wielding such an all-encompassing effect on people’s ability to communicate and receive information, had to give way to the Constitutional rights to free speech.
Unfortunately, since the Marsh decision, courts have continuously curtailed the case’s application as an exception to the State Action Doctrine. But the rise of Super Apps makes us wonder whether it is time to revive Marsh. A Super App user’s whole cyberspace presence may exist through only one account that is often also linked to a bank account. The user may chat with friends in the morning, conduct a business meeting during the day, and send manufacture specification to business partner in the afternoon. At night, this user sees some troubling news, and decides to share their own views on the Super App with friends and business partners. The Super App finds the views to violate community guidelines and freezes the account. This action will have a far more profound impact on this user’s life than does an account freeze by a “single purpose” app such as Twitter. Perhaps the next day this user needs to wire transfer a payment to business partners or coordinate a get-together with friends. This user may have been paying everyday vendors such as delivery, restaurants, and groceries solely through the Super App, and now this user can’t access their money account.
It is easy to imagine the overreaching effects that a Super App’s censorship can have on a user’s ability to even minimally function in the society. Is this the modern version of a corporate town? In Marsh, the town arrested the street preacher, and the State of Alabama charged and convicted her for trespass. In today’s world, where our online existence is increasingly becoming more important than our corporeal presence, a Super App’s ability to wreck a person’s life on the basis of speech can potentially be similar to that of criminal prosecution and imprisonment. But even putting that aside, the amplified chilling effect that such censorship has on speech (from the utilitarian point of view), and the sheer humiliation from being ubiquitously penalized for one’s expression (under the deontology framework) is more than sufficient to make us worry about the danger of Super Apps on the unalienable right to free speech, and our courts’ inability to protect us therefrom.
Christopher Gao: Berkeley Law 2021, Associate Editor of the California Law Review.
Recommended Citation: Christopher Gao, Social Media Censorship, Free Speech, and the Super Apps, Calif. L. Rev. Online (Oct. 2020), http://www.californialawreview.org/social-media-censorship-free-speech.